The pendency of a civil suit should be deemed as reliable evidence in support of denial of public right in proceedings under section 133 of the Code of Criminal Procedure.

( 1 ) THIS revision has been preferred against the judgment and order of Sessions Judge, Mau, The Sessions Judge has allowed the revision filed by the opposite party and set aside the order of the Magistrate making conditional order u/s. 133 of the Code of Criminal Procedure (hereinafter referred to as the Code) final.

( 2 ) THE facts of the case are not much disputed. On the report of the Station Officer, Koopaganj, district Mau dated 6-8-1989 complaining that Swami Nath Rai has encroached public passage by keeping bricks across it, a conditional order was issued on 23-8-1989, asking Swami Nath Rai to remove the obstacle. He appeared on the date fixed and stated that no public passage existed. The opposite-party filed an application requesting the Magistrate to start proceedings u/s. 144 of the Code. The learned Magistrate had asked the Naib Tahsildar to make a local inspection. Swami Nath Rai was asked to produce evidence regarding denial. Besides other evidence, he had filed copy of complaint regarding a suit filed by him. The learned Magistrate did not accept documentary evidence relating to denial produced by the opposite-party. Hence he made the conditional order final and asked Swami Nath Rai to remove obstruction in the passage.

( 3 ) SWAMI Nath Rai filed a revision before the Sessions Judge. The Sessions Judge held that Suit No. 22 of 1990 was in respect of passage in dispute. He had held that, as long as the suit was pending, the case u/s. 133 of the Code could not proceed. He also held that the evidence regarding denial was sufficient. There could be no other better evidence than the suit itself. It was, therefore, held that the learned Magistrate had erred in confirming the conditional order. On the above observations, the impugned order was passed.

( 4 ) IT has been argued by learned counsel for the applicant that the case could proceed even though the suit was filed. It was stated that the suit was filed on 9/02/1990 and the conditional order was passed on 23-8-1989. Since the conditional order was prior in time, the final order passed by the lower court should not have been set aside.

( 5 ) LEARNED counsel for the applicant has relied upon Rama Shanker Shukla v. State of U. P. 1989 Judicial Interpretation of Crime 272 : (1989 All LJ 295 ).

( 6 ) LEARNED counsel for the opposite party argued that if the lower court wrongly decides that there was no reliable evidence with regard to denial of existence of public way it assumes jurisdiction not vested in it by law. It was argued that the Sessions Judge has rightly interfered in the matter and set aside the order of the Magistrate making conditional order final.

( 7 ) LEARNED counsel for the opposite party has relied upon a case in Mahabir Singh v. State (1980 All LJ 672 ).

( 8 ) IT is not disputed that in respect of the very passage in dispute a civil suit is pending. Even though it has been filed after initiation of the proceedings u/s. 133 of the Code, the learned Magistrate ought to have stayed proceedings and asked the parties to get their rights declared in the competent court of jurisdiction.

( 9 ) THE learned Magistrate ought to have considered the scope of enquiry u/s. 137 (2) of the Code. This sub-sec. (2) reads as under:"if in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceeding 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 S. 138. "

( 10 ) THE Sessions Judge has rightly held that there was evidence regarding denial of public way. In both the case law cited above, it was held by Honble V. P. Mathur J. in Rama Shanker Shuklas case (1989 All LJ 295) and Honble P. N. Bakshi, J. in Mahabir Singhs case (1980 All LJ 672) that the pendency of a suit being accepted by the court below, it should be deemed to be reliable evidence in support of denial of public