Shamji Tricumdas Bhatia And Others v. Ram Moye Opposite Party.

1. This is a rule against an order of the Sub-divisional Magistrate of Suri making absolute an order passed under Section 133 of the Cr PC, directing the petitioner to remove an unlawful obstruction on the alleged public road, on the ground that the learned Magistrate acted illegally in refusing to appoint a jury under Section 138 of the Cr PC. The learned Magistrate made an inquiry under S. 139-A on the denial of the petitioner that the road in question was a public road and the Magistrate finding that there was no reliable evidence in support of the denial of the petitioner, was bound to proceed as laid down in S. 137 or S. 138. It is urged before us that before the Magistrate makes an inquiry as to whether there is evidence in support of the denial of the existence of a public way, the petitioner must have elected to have the matter tried by a jury under S. 135. But we think that it is still open to the petitioner to elect to have the matter tried by a jury after it has been decided by the Magistrate that there is no reliable evidence in support of the denial of the existence of the public way. We therefore set aside the order of the Magistrate directing the petitioner to remove the obstruction and send the case back to him for action under Section 138 of the Cr PC, according to law.

2. The other ground was that in view of the civil suit instituted, the proceedings before the learned Magistrate were without jurisdiction and the orders should be set aside or stayed pending the disposal of the civil suits.

3. The fact that the civil suit has been instituted is no bar to the proceedings and it is within the jurisdiction of the Magistrate to continue the proceedings under Section 138 of the Cr PC. The civil suit may take a long time, in the meantime it is quite competent to the Magistrate to decide the matter summarily under the Code of Civil Procedure.

R.K

4. Order accordingly.