Full Judgment
I.P. Singh, J.
1. This criminal revision is directed against the order of III Addl. Sessions Judge, Muzaffarnagar, dated 15-1-85, passed in Criminal Revision No. 168 of 1984, whereby he allowed the said revision, set aside the order of the learned Magistrate dated 20-5-83 and remanded the matter back to the Magistrate concerned directing that the case be proceeded with in furtherance of the Magistrate's order dated 16-9-82 which had . been confirmed in Criminal Revision No. 20 of 1982.
2. The brief facts are that three applications dated 16-12-80, 18-12-80 and 2-1-81 had been moved by one or others of Mahendra Singh, Jaibir Singh, Sukhbir Singh, Umrao, Chauhal Singh and Babu Ram complaining that Surendra Singh and others, present revisionists had encroached upon public way by raising wall. The Magistrate called for the report from the police station concerned as to whether there was any encroachment of the alleged public way. On the report of the police a conditional order Under Section 133, Cr. P. C. was passed and the notices were issued against the revisionists.
3. By order dated 16-9-82, the learned Magistrate purported to pass an order under Section 137, Cr. P. C. holding that there was no reliable evidence in support of the denial, by the present revisionists of the existence of public right in respect of the way in question. The present revisionists filed Criminal Revision No. 209 of 1982 in the court of Sessions Judge, Muzaffarnagar who dismissed the same upholding the order of the learned Magistrate dated 16-9-82.
4. Obviously under Section 137(2), Cr. P. C. the Magistrate was to proceed further as laid down in Section 138, Cr. P. C. At any rate, during the pendency of those proceedings a compromise between the parties was filed which was verified before the Magistrate concerned on 20-5-83 and on the basis of the said compromise the proceedings under Section 133, Cr. P. C. were dropped by order dated 20-5-83 of the Magistrate concerned.
5. There is a controversy between the parties as to whether the said compromise is genuine or forged. This controversy is the subject matter of connected revision and would be dealt with therein.
6. Jaibir Singh, Mahendra Singh and Chauhal Singh O. Ps. 1, 2 and 3, feeling aggrieved against dropping of the proceedings by the said order dated 20-5-83 filed Criminal Revision No. 168 of 1984 before the Sessions Judge, Muzaffarnagar, and the same was disposed of by III Addl. Sessions Judge, Muzaffarnagar by order dated 15-1-85, which is the impugned order, whereby the said criminal revision was allowed and the order of the learned Magistrate dated 20-5-83 was set aside and the case was remanded to him for proceeding further in the matter in furtherance of his earlier order dated 16-9-82 as confirmed in Criminal Revision No, 209 of 1982. U was held therein that the proceedings under Section 133, Cr. P.C. could not be compromised between the parties and the matter had to be decided by the Magistrate in accordance with the procedure laid down in Section 138, Cr. P. C. It is against this order that the present revision has been filed.
7. Section 137(1) and (2), Cr. P. C. in clear words provide to the effect that when the person against whom an order is made under Section 133, Cr. P. C. happens to deny existence of any public right in respect of the way etc. then the Magistrate shall, before proceeding under Section 138, Cr. P. C. would enquire into the matter and if in such enquiry the Magistrate finds that there is no reliable evidence in support of such denial he shall stay the proceedings until the matter of the existence of such rights has been decided by a competent court and if he finds that there is no such evidence he shall proceed as laid down in Section 138, Cr. P. C. This provision is mandatory and the Magistrate has no option but to act in terms of Section 137(2), Cr. P. C. according to his finding about the availability or non-availability of any reliable evidence in support of the denial of the existence of any public right in respect of way etc. If his finding is that there is no such evidence then he is to proceed in accordance with the procedure laid down in Section 138, Cr. P. C. The finding of the learned Magistrate dated 16-9-82, as confirmed in Criminal Revision No. 209 of 1982 was that there was no such evidence. He was, therefore, to proceed under Section 138, Cr. P. C. which lays down that the Magistrate shall take evidence in the matter as in summons case. Thus, there is no scope for the Magistrate to act upon the compromise entered into between the parties. I am supported in this view by the decision in Upendra Nath Mandal v. Ram Pal (1910) 11 Cri LJ 1 of Calcutta High Court wherein it was observed as under:
As in a proceeding under Section 133 public rights are involved, the matter must be determined by the court upon legal evidence and not made the subject of compromise by the disputing parties. In this view of the matter, it is clear that even upon the assumption that the present petitioners agreed to abide by the decision of the Magistrate based, not upon evidence legally received, but upon information gathered upon local enquiry, the order of the Magistrate cannot be supported. No waiver on the part of the petitioners could confer on the Magistrate authority to act in a manner not prescribed by the Legislature. The result, therefore, is that the Rule must be made absolute and the order of the court below discharged.
8. In view of the above, the impugned order dated 15-1-85 is quite justified and I see no illegality or irregularity in it. The present revision has, therefore no force and it is hereby dismissed summarily.