Nirsu Pande vs Emperor

Macpherson, J.—In respect of this rule it is best that this Court should say as little as possible.

After hearing at length the learned advocate for the petitioner Nirsu Pande and examining the papers, it appears to me that what has happened is that in his inquiry u/s 139-A, that is on the papers produced (the petitioner adduced no other evidence) and the arguments of the parties, the Magistrate found that there was not any reliable evidence in support of the denial of the petitioner that a public right existed in respect of the alleged way through his plot 215.

Now under the provisions of Section 139-A (2) what he ought to have done upon so finding, was to proceed as laid down in Section 137 or Section 138, Criminal P.C., as the case required. What he actually did was to make the rule u/s 133 absolute against the petitioner. Therein he erred.

Accordingly the order absolute of the Magistrate is set aside and he is directed to take up the matter further and proceed as laid down in Section 137 or Section 138 as the case requires. I should mention that there is no substance in the petitioner''s plea that the Magistrate ought to have stayed proceedings until the matter of the existence of the right in controversy has been decided by a competent civil Court.

He could only do so if he found affirmatively that there was reliable evidence in support of the petitioner''s denial. Some of the decisions on this point are couched in words rather loosely used. To oust his jurisdiction, it is necessary that the Magistrate should find that there is evidence which is in his judgment reliable--there is no obligation upon him to find evidence, however specious, to be reliable which he does not think reliable and thereupon to fail to exercise his own jurisdiction.

It is just as incumbent upon him to exercise his own jurisdiction as to refrain from encroaching upon that of the civil Court, and he would so encroach if but only if he found that there was any reliable evidence in support of the denial and nevertheless proceeded u/s 137 or Section 138. The text-books mislead by half quoting what is stated by Ross, J., in Thakur Sao and Others Vs. Abdul Aziz, .