V.D. Chaturvedi, J.
1. This petition Under Section 482 Cr. P.C. has been filed challenging the order dated 1.6.1987 whereby the objection of the petitioner filed in proceeding Under Section 133 Cr. P.C. was rejected by the Sub Divisional Magistrate, Auraiya District Etawah.
2. A copy of the objection filed by the petitioner is Anncxure-2 to the affidavit filed in support of this petition. In this objection the existence of public place has been denied and it has been asserted that the disputed place is a Sehan land of the petitioner, Mata Prasad. In the case of denial of public-right over the land, Section 137 Cr. P.C. makes it incumbent upon the), Magistrate to enquire into the matter whether the public has any right in respect of the place or not before proceeding Under Section 138 Cr. P.C. The Magistrate is bound to express his opinion whether there was any reliable evidence in support of such denial. If there is any reliable evidence, the proceedings Under Section 133 Cr. P.C. shall be stayed till the decision on that point by a competent court. If on the other hand, the Magistrate finds that there was no reliable evidence in support of the objector’s denial, the Magistrate shall proceed Under Section 138 Cr. P.C. In the impugned order the Magistrate has not stated any thing expressing that any reliable evidence was produced or not by the petitioner Mata Prasad in support of his plea of denial of public pathway. The impugned order, therefore, cannot sustain.
3. This petition is, therefore, allowed. The impugned order dated 1.6.87 is set aside. The Sub Divisional Magistrate is directed to give the opportunity to the petitioner to lead evidence in support of his claim and thereafter shall pass the order as directed in Section 137 Cr. P.C. The petitioner is directed to appear in the court below within a month.
