Phulel Singh and Others vs State of Punjab and Others

S.S. Sodhi, J.—The controversy here is with regard to proceedings u/s 137(sic) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Code'')- To be specific, whether the evidence adduced in denial of the public right claimed over a path was ''reliable'' evidence, in terms of Section 137 of the Code, rende-ring it incumbent upon the trial magistrate, to stay proceedings, pending adjudication by the competent court. The bone of contention being the path in Khasra No. 313 of village Adhrian in Tehsil Muktsar of District Faridkot.

The material on record shows that at one time there was indeed a public path in Khasra No. 313, but on August 12, 1983, by an agreement of exchangc, exhibit R/1 followed by a resolution of the pan-chayat exhibit R/2 of the next day, that is, August 13, 1983, this path was given in exchange to the Petitioner Phulel Singh, in lieu of other land given by htm to the Panchayat. It is, on the basis of this exchange, that the Petitioner denied the public right claimed over this path. The Respondents on the other hand, relied upon the subsequent resolution of the Panchayat exhibit A/4 of February 3, 1984, whereby the earlier resolution was recalled and the exchange denied.

Mr. K. S. Sidhu, counsel for the Petitioners, however, sought to contend that in proceedings initiated u/s 133 of the Code, once the magistrate found that there was some evidence to indicate that the path in question was a private path, he was bound, in law, to stay his hand and leave the matter to be decided by the competent civil court. He laid stress, in this behalf upon the words ''reliable evidence in support of such denial'' occuring in Sub-section (2) of Section 137 of the Code. In support, reference was also made to the judgment of the High Court of Allahabad in Anand Kishore Vs. State, , where ''reliable evidence'' was defined to mean "evidence on which it is possible to place reliance and does not signify evidence which positively establishes the title in the land". Counsel argued that seen with this yard stick once it was brought on record that by a resolution of the Panchayat, the land in Khasra No. 313, had been exchanged and given to the Petitioner, it was not for the magistrate to decide what affect, if any, the subsequent resolution of the Panchayat had, upon the earlier resolution of the Panchayat. This contention, though attractive, on the face of it, cannot, however, stand as a reference to the relevant provisions of the Punjab Village Common Lands (Refulation) Act, 1961, and the rules framed there under would show that it is only with the previous approval of the Government that the Panchayat is empowered to transfer land in the shamlat vested in it and that too after the Gram Panchayat records the opinion that such alienation would be for the benefit of the inhabitants of the village. No such opinion was ever recorded, nor is there any mention of any approval of the Government either prior or even subsequent to the exchange, on the basis of which, the Petitioner seeks to deny the public right over the path in question. This being so, the evidence brought on record, by the Petitioner can, by no means, be treated as ''reliable evidence'' in support of his plea of denial of public right over the path.

A plea was also sought to be raised, founded upon the judgment of this Court in Ishar Singh v. Varinder Kaur (1986) (2) C. L. R. 344., that the order of the Magistrate stood vitiated by the fact that he had personally inspected the spot instead of getting it inspected by some one appointed by him for this purpose. This obbjection is clearly of no avail in the context of the Petitioner having failed to adduce any ''reliable evidence'' in support of his denial of the public right claimed.

No infirmity can thus, be imputed to the impugned order of the Magistrate, later confirmed in revision by the Additional Sessions Judge, Faridkot.

This petition is accordingly hereby dismissed.