Mahavir Singh and Others vs State and Another

P.N. Bakshi, J.—An application was filed by Gajraj Singh u/s 133 Code of Criminal Procedure alleging that Mahavir Singh and others had obstructed a public path way in village Jitauli, Police Station Nidhauli Kalan District Etah. The Magistrate called for a report from the police on 28th August, 77. He passed a conditional order on 29th September, 77. On appearance, Mahavir Singh and others, who are present Applicants, denied the existence of the Public Path way. The trial court directed the Applicant to lead evidence in support of denial the existence of the Public Path way. The trial court directed the Applicant to lead evidence in support of denial u/s 137 Code of Criminal Procedure. On a consideration thereof, the trial court rejected the objection, filed by the Applicants and directed the parties to produce evidence u/s 138 Code of Criminal Procedure vide order dated 5th April, 1978. Aggrieved thereby a revision was filed by Mahavir Singh, which has been dismissed by the Sessions Judge Etah vide order dated 13th December, 78, hence this application u/s 482 Code of Criminal Procedure.

I have heard learned Counsel for the parties and have also perused the impugned orders, and the affidavits on the record.

A preliminary objection has been taken by counsel for the opposite party. He submits that an order passed u/s 137 Code of Criminal Procedure is as inter locutory order, and therefore it is not reviseable and no relief should be granted to the Applicants in the exercise of powers u/s 482 Code of Criminal Procedure. This question has already been decided by me earlier also and on reconsideration, I find no reason to change my view. Section 137(2) runs as follows:

If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent court, and, if he finds that there is no such evidence, he shall proceed as laid down in Section 138.

It is clear from a perusal of this section that if there exists reliable evidence in support of denial of the Public Path way, then the criminal court is bound to stay its hands till the existence of such right is decided by a competent court. In that event the criminal court would have no jurisdiction to proceed further with the case. It is thus clear that Section 137(2) Code of Criminal Procedure contemplates the termination of a proceeding, which has been initiated u/s 133 Code of Criminal Procedure, if ground exists for the same as required by Section 137(2) Code of Criminal Procedure. If a court wrongly decides the question-with regard to the existence of reliable evidence, it assumes jurisdiction not vested in it by law. In my opinion, such an order is not an interlocutory order, and it can be interfered with in the exercise of revisional powers. So far as inherent powers are concerned, they are still wider as has been held in Madhu-limaye''s case. Even if we assume that the order in question is interlocutory order, yet the powers of this Court u/s 482 Code of Criminal Procedure are not in any way fettered when the interest of justice requires the grant of relief to the Applicants. In my view, therefore, there is no merit in this preliminary objection.

Counsel for the Applicants has urged a number of points, but in the view that I am taking, it is not necessary for me to discuss them all. It appears that a civil suit with respect to the same property had been filed by Amrit Singh, who is the uncle of Gajraj Singh against Mahavir singh and others. That civil suit No. 155 of 1977 was filed much earlier than the instant application u/s 133 Code of Criminal Procedure, filed by Gajraj Singh. A copy of the plaint in that civil suit filed by Amrit Singh was filed before the Magistrate along with the copy of the order-sheet, which indicated that the Munsif had directed the parties to maintain the status quo with respect to the disputed property on 21st May, 77. The objection of the Applicants was that since the rights of the parties with regard to the subject matter in dispute was already pending prior to the instant application u/s 133 Code of Criminal Procedure, and since the rights of the parties would be decided therein, the Magistrate was bound to stay his hands u/s 137(2) Code of Criminal Procedure. Both, the trial court as well as the Sessions Judge, have accepted the position that civil suit No. 155 of 1977 had been filed and that an interim order for maintaining the status quo had been obtained therein as early as 21st May, 77. In my opinion, the pendency of the suit having been accepted by the court below as also the existence of the stay order, the documentary evidence filed on behalf of the Applicants in connection therewith must be deemed to be reliable evidence in support of the denial of the public right. Both the courts below have completely misunderstood the law in refusing to stay the hearing of the application u/s 133 Code of Criminal Procedure and. directing the parties to adduce evidence u/s 138 Code of Criminal Procedure.

Counsel for the opposite party has argued that Gajraj Singh was not a party to that suit. It is noticeable that Gajraj Singh is not claiming any individual personal right in. the instant case. He has filed the application u/s 133(2) Code of Criminal Procedure on the ground that there exists a public path way on which Mahavir Singh and others have caused obstruction. Therefore, even according to their own case the public right has been infringed. Amrit Singh, the uncle of Gajraj Singh had filed the civil suit No. 155/77 and in that case the question of existence of the public path way was also involved. Therefore, it does not lie in the mouth of Gajraj Singh to allege that the same question was not involved in that suit which is now sought to be raised by way of an application u/s 133 Code of Criminal Procedure. In my opinion, a severe injustice has been caused, as a result of the impugned orders passed by the courts below. There can be no clearer case of the existence of reliable evidence than the institution and pendency of a prior civil suit as also the existence of interim orders maintaining the status quo between the parties passed by the civil court.

For the reasons given above, I am of the opinion, that the courts below have acted illegally in refusing to stay the proceeding u/s 137(2) Code of Criminal Procedure, and any proceeding with the case in excess of jurisdiction conferred upon them by law.

This application u/s 482 Code of Criminal Procedure is hereby allowed. The impugned orders passed by the courts below are quashed. The proceedings u/s 133 Code of Criminal Procedure shall remain stayedtill the final disposal of the civil suit No. 155 of 1977.