1. The applicants have come forward with a prayer for quashing the proceedings pending before the Sub-Divisional Magistrate, Bansdih, District Ballia, in Case No. 76 of 1979, under S. 133, Cr. P.C, State v. Ram Narain.
2. The applicant 2 is married to the only daughter of applicant 1. The applicant 1 has kept applicant 2 and his family with him. It is alleged that the residents of the village are unhappy on account of the same. It is, further, alleged that Ambika Singh's father had some dispute with Ram Narain applicant. It is, further, alleged that Ambika Singh manoeuvred some other residents of the village and a path-way is being claimed between the Sehan of Ambika Singh and others and the house of applicant 1 falsely and the proceedings under S. 133, Cr. P.C, have been initiated with that objective.
3. It is, further, alleged that the report of the Naib Tahsildar may disclose that no passage has been obstructed by the applicants and no public Rasta exists. It would appear that the Magistrate by a preliminary order issued notices. The Magistrate further held that the evidence produced by the applicants in support of their denial is not satisfactory and the applicants submits that the Magistrate is wrongly proceeding under S. 138 Cr. P.C which is an abuse of the process of the Court.
4. The stand of the applicants is that one of the complainants figuring as applicant in proceedings u/s. 133 Cr. P.C, filed a suit for injunction against the present applicants claiming the land as a passage. This suit was filed during the pendency of the proceedings under S. 133, Cr. P.C; and when that is the position, the Magistrate should not have proceeded further and stayed the proceedings. The averments regarding the merits of the case under S. 133, Cr. P.C, are denied by the opposite side.
5. The main point urged is that once a suit has been filed, proceedings under S. 133, Cr. P.C, could not be continued. Reliance in support of such argument is placed upon the case of Mahabir Singh v. State (1980 All LJ 672). The facts of that case are distinguishable. In that case civil suit was filed prior to application under S. 133, Cr. P.C with respect to some property and the Munsif had directed the maintenance of status quo. It was held that in such situation the provisions of S. 137(2), Cr. P.C, are attracted and the Magistrate should have stayed the proceedings under S. 137(2) Cr. P.C In the present case the position is just otherwise. It was the proceeding under S. 133, Cr. P.C, which was initiated first. The Legislature in its wisdom has conferred certain powers upon the Magistrate to prevent obstruction of public path etc. in the proceedings under S. 133, Cr. P.C onwards. It is a matter of common knowledge that civil litigation takes much longer time. If the disputed land is really a public path, it will remain obstructed until that civil suit is decided. Perhaps that was one of the consideration which weighed with the Legislature and at the same time adequate safeguards have been provided to the party defending the notice and S. 137(2) Cr. P.C, has been enacted with that objective providing that if after notice being issued under S. 133, Cr. P.C, there is denial of public right and there is any reliable evidence in support of such denial, the Magistrate shall stay the proceedings until the matter of existence of such right has been decided by a competent court. The Magistrate has vide his order dated 5-8-80 (Annexure ‘2’) held that there is no reliable evidence in support of the denial of the right. He has held so after considering the materials on records. It is a finding of fact of the Magistrate and it cannot be lightly interfered with in the proceedings under S. 482, Cr. P.C In fact, in such proceedings what the Court will consider is whether the Magistrate has followed the procedure and has not ignored it. The Magistrate has observed the procedure laid down in S. 133, Cr. P.C onward. When that is the position, it cannot be said that the Magistrate is proceeding under S. 138 Cr. P.C violating any rules of procedure or denying any right conferred to the applicants.
6. The provisions under Ss. 145 and 133 Cr. P.C, conferring certain powers on the Magistrate are based on public policy and they are independent powers and the mere circumstance that finally the civil court is entitled to decide the title will not stand as a bar to the exercise of such powers as they have under Cr. P.C In the case of M.S Sherif v. State of Madras (AIR 1954 SC 397) it was laid down that as between civil and criminal proceedings, the criminal matters should be given precedence. In the case of Shyamji Tikam Das v. Ram Moye (AIR 1933 Cal. 318) it was held that the fact that a civil suit has been instituted is no bar to the proceeding under S. 133, Cr. P.C It was further observed that the civil suit may take a long time and the Magistrate is quite competent to decide the matter summarily under the Chapter relating to proceedings under S. 133, Cr. P.C In the case of Duli Chand v. Emperor (AIR 1929 All 833) it was held that the procedure adopted under S. 133, Cr. P.C, and the other linked section is more or less summary in nature and the decision of the Magistrate goes so far as to fix upon the party who should go to the civil court. The summary nature of the proceedings was emphasised and that aspect is relevant. The proceedings under S. 133, Cr. P.C having been initiated first, the mere institution of civil suit would not divest the Magistrate of his power to first decide whether there is any reliable evidence in support of denial, and if he holds that it is not so, he will be at liberty to continue the proceedings under S. 138, Cr. P.C and the institution of any suit pending the proceedings under S. 133, Cr. P.C, would not bar his jurisdiction to proceed.
7. In the result, I do not find it a fit case for exercising any inherent power under S. 482, Cr. P.C, and the application isl rejected.
8. Petition dismissed.