JUDGMENT

Dalip Singh, J. - This case has been referred by the learned Sessions Judge on the ground that the learned Magistrate in proceedings under Section 133, Criminal P.C., is not entitled to proceed under that section and the following sections where there is a bona fide dispute about the right of the public to pass over a certain path. This I do not consider is the law see Abdul Wahid Khan v. Abdullah Khan A.I.R. 1924 All. 1, Ramsagar v. Alek Naskar A.I.R. 1922 Cal. 59 in which the matter has been discussed at great length. The rulings are under the old law and even under that law the latest pronouncements of the Courts are in favour of the view that the Magistrate has jurisdiction. Section 139-A, which has been recently enacted now lays down that the Magistrate in such an enquiry has to find if there is any reliable evidence in support of the denial of the party alleged to cause the obstruction.

2. As to what the learned Magistrate has to do, to determine that question, the only authority which I have been able to and is Thakursao v. Abdul Aziz A.I.R. 1926 Pat. 170. It is there pointed out that reliable evidence is evidence of reliable persons. I take it that what is really meant is not that the Magistrate should weigh the evidence produced by both sides and then come to the conclusion which he believes or which he prefers, but the Magistrate should take the evidence as it stands and see whether on the face of it, if there was no evidence to the contrary, he could come to the conclusion that the evidence was false and was, therefore, unreliable. I have read the evidence given in this case and I do not see that on the face of it this evidence is unreliable or of unreliable persons. The order of the Magistrate shows clearly that he proceeded to weigh the evidence and to inspect the spot and then came to the conclusion that the evidence given by the petitioners was unreliable. This, in my opinion, was a wrong exercise of the powers given under Section 139-A. Although a Magistrate has jurisdiction to decide whether the evidence is reliable or not, in this particular case the Magistrate has failed to notice how he had to arrive at that finding. I, therefore, accept the reference and set aside the order of the learned Magistrate making the conditional order to remove the obstruction absolute.