KAILASH PRASAD, J.

( 1 ) THIS is a reference by the Sessions Judge Bulandshahr, recommending that the order of the magistrate staying the proceedings should be set aside and the Magistrate be directed to find if the public way determined by the consolidation authorities has been obstructed by Bhule and others.

( 2 ) PROCEEDINGS under Section 133, Cri. P. C. started on the application of Jai Ram Singh alleging that Bhule and others (opposite parties) had obstructed a public way passing through plot No. 373 in village Suthari. The application was sent by the Magistrate to the Station Officer, bisa-rakh, for report. The Station Officer reported that Bhule and others had illegally closed the public way by constructing a wall. Thereupon the Magistrate passed a conditional order requiring Bhule and others to remove the obstruction. Bhule and others filed a written statement denying the existence of any public way on the land on which they were constructing wall. They examined three witnesses in support of their denial of the existence of the public way. The file was then sent to the Tahsildar for enquiry under Section 139a, Cri P. C. with the direction that the Tahsildar should enquire and make a report in consultation with the Consolidation Officer. The Tahsildar reported that no evidence was produced by Bhule and others except what they had produced before the Magistrate who sent the case to the Tahsildar for enquiry and report. The tahsildar also reported that he inspected the locality and a public way was in fact obstructed by bhule and others. It appears that the Magistrate who had sent the file to the Tahsildar for enquiry and report was transferred in the meantime and another officer succeeded him. He then proceeded to enquire under Section 139-A if there was any reliable evidence on behalf of Bhule and others in support ot their denial of the existence of a public right of way. After hearing the parties the Magistrate found that the proceedings before the Tahsildar were illegal. The Magistrate then considered the evidence on record and was of the view that the evidence produced by Bhule and others in support of the denial of the public way was reliable. He, therefore, ordered the proceedings to be stayed until the question of the existence of the public right of way was decided by a competent court.

( 3 ) JAI Ram Singh who had initiated the proceedings under Section 133, Cri. P. C. went in revision before the Sessions Judge against the order of the Magistrate. The learned Sessions judge, on considering the documentary evidence produced on behalf of Jai Ram Singh, came to the conclusion that an area of 2 biswas in plot No. 373 was a public way. He also held that when the documentary evidence in the form of a map prepared by the consolidation authorities established the existence of a public way the Magistrate should have proceeded to determine if any encroachment was made on that public way or not. The Sessions Judge has therefore made this reference making the recommendation mentioned in the opening part of the order.

( 4 ) MR. G. N. Verma, appearing for Jai Ram Singh contended that when the case was sent to the tahsildar for enquiry and report under Section 139a, Cri. P. C. and the Tahsildar reported that there was no evidence in support of the denial of the right of public way the Magistrate had no jurisdiction to determine whether there was any reliable evidence in support of that denial. He argued that the report of the Tahsildar that Bhule and others did not produce any evidence before him amounted to a conclusive finding to the effect that there was no reliable evidence in support of their denial of the public way. The contention does not appear to be sound. It is true that under section 133 a Magistrate before whom proceedings have been initiated under Section 133, Cri. P. C. and who has made a conditional order can direct the parties to appear before some other magistrate of the first or second class but he cannot di

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