Narayan Chandra Das vs Sugan Chand Serawgi and Another

S.K. Dutta, C.J.—This revision petition arises out of a proceeding u/s 133, Criminal P.C. The proceeding under the said section was drawn up on the basis of a police report. It was alleged that the second party had obstructed a publics path which was used by the first party.

The scheme of inquiry in a proceeding u/s 188, Criminal P. C., is as follows:

When a person is served with an order u/s 188, Criminal P.C.

(i) The Magistrate shall ask him whether he denies the existence of the public right in question. In case of denial the Magistrate shall conduct an inquiry into the matter under "S. 189-A before holding any inquiry u/s 137 or Section 188, Criminal P. C. At this inquiry the person shall have to produce re. liable evidence in support of his denial of a public right.

(ii) If the Magistrate finds that there is some reliable evidence in support of the denial, his jurisdiction ceases and the proceeding shall be stayed until the matter is decided by a Civil Court.

All that the Magistrate has to see is if there is some "reliable evidence" which tends prima facie to support the existence of a private right. Reliable evidence does not mean evidence which definitely establishes the right claimed.

(iii) If the person does not raise any question of private right or if there is no reliable evidence in support of such a right, the Magistrate shall hold an inquiry u/s 187 or Section 128.

(iv) If the person fails to deny, a public right or having denied the same, fails to adduce reliable evidence in support of the denial, then in the inquiry u/s 187 or Section 188, which follows, he will not be allowed to deny the public right. Nor shall any question in respect of the existence of any such public right be inquired into by any jury appointed u/s 188. The only thing left will be to inquire whether the obstruction relates to the public path or not.

ID the present case, it appears that the learned Magistrate was under some misapprehension. He gave a finding that there was no reliable evidence to support the denial of a public right and yet he again went to take evidence in support of the denial. This he could not do. If in the enquiry u/s 189-A reliable evidence is found in support of the public right, then the jurisdiction of the Magistrate is ousted. If no reliable evidence is found, then the only enquiry that can be made u/s 187 , Criminal P. C., is whether the obstruction relates to the public path or not. All the evidence that can be adduced in support of the denial should be adduced at the proceeding u/s 139-A. But the Magistrate took evidence after giving a finding that there was no reliable evidence to support the denial.

In this view of the matter, the case goes Back to the Court below where it should be disposed of according to the procedure laid down above.