JUDGMENT : S. Anwar Ahmad, J. 1. This application in revision is directed against the ORDER :of the learned Magistrate allowing permission to the opposite party to cross-examine the witness examined on behalf of the petitioners. The opposite party filed an application before the Sub-divisional Magistrate, Patna, for starting a proceeding under Section 133, Code of Criminal Procedure, against the petitioners, on the ground that they encroached upon a public path in village Udaini on the 26th December, 1968. The matter was referred to the police and on receipt of the report on the 14th January, 1969, notices were issued to the petitioners under Section 133, Code of Criminal Procedure. On the 7th April, 1969, the petitioners (second party to the proceeding) appeared before the learned Sub-divisional Magistrate and denied the public character of the land. The case was thereafter transferred to the file of Shri A. Kumar, Magistrate with first class powers, for disposal. On the 13th May, 1969, the learned Magistrate directed the petitioners to adduce evidence in support of their denial. On the 23rd June, 1969, one witness was examined on behalf of the petitioners and he was cross-examined in part on behalf of the opposite party. The matter was put up on 1st July, 1969, for further cross-examination. On this date a petition was filed on behalf of the petitioners stating that the opposite party had no right to cross-examine the witness examined by them in support of their denial of the public character of the land in dispute. The learned Magistrate did not agree to this, hence this application in revision. The present application was put up for hearing before K.B.N. Singh, J., who has referred the matter to Division Bench and that is how the case has come before us. 2. The short point for decision is as to whether an applicant under Section 133, Code of Criminal Procedure, can cross-examine a witness examined on behalf of the person who denies the public character of the land. In the instant case, as already stated, the learned Magistrate has permitted the applicant (first party to the proceeding under Section 133) to cross-examine the witness examined by the petitioners who denied the existence of public right of way on the land in dispute. In this connection, it would be relevant to quote Sub-sections (1) and (2) of Section 139A, Code of Criminal Procedure: 139A. In this connection, it would be relevant to quote Sub-sections (1) and (2) of Section 139A, Code of Criminal Procedure: 139A. (1) Where an ORDER :is made under Section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the ORDER :was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under Section 137 or Section 138, inquire into the matter. (2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Civil Court; and, if he finds that there is no such evidence, he shall proceed as laid down in Section 137 or Section 138, as the case may require. 3. So far as this Court is concerned, it has been consistently held that if the ex-parte evidence produced in support of the denial is reliable in the opinion of the Magistrate, he should stay the proceedings unless the matter of the existence of such right has been decided by a Civil Court. The earliest decision on the point is reported in (1) I.L.R. 4 Pat 783 (Thakur Sao V. Abdul Aziz). It was held in that case that all that the law required was that the party proceeded against under Section 133 should appear before the Magistrate and, if he denied the public right, he should produce some evidence in support of his denial. If this evidence was reliable, the jurisdiction of the Magistrate was ousted. Their Lordships laid down: The section, however, requires evidence and not proof and the only condition is that upon the materials before him the Magistrate shall have no reason to think the evidence false. The Magistrate has no jurisdiction to weigh the evidence and to determine on which side the balance leans. In that case a dispute arose over the possession of a ghat as to whether it was a public property or the property of one of the parties, viz., Deonarain Pande. The Magistrate has no jurisdiction to weigh the evidence and to determine on which side the balance leans. In that case a dispute arose over the possession of a ghat as to whether it was a public property or the property of one of the parties, viz., Deonarain Pande. Ross, J., who was also a party to the JUDGMENT :, pointed out that the intent of the Legislature in enacting Section 139A (2) was that the Magistrate should neither encroach upon the jurisdiction of the Civil Court which alone could determine the existence of such a public right, nor fail to exercise his own jurisdiction. According to his Lordship, the criterion was that if the Magistrate found the evidence supporting the denial reliable, that was sufficient to oust his jurisdiction. In the case of (2) Sitaram Ray V. Badri Ray [A.I.R. 1935 Pat 218 (2)] the second party to a proceeding under Section 133 supported his claim of title to the land by extracts from the Record-of-Rights and from the partition proceedings. The learned Magistrate instead of taking action under Section 139A, directed that each party should produce his evidence. This ORDER :was set aside by this Court and it was held that when the opposite party had produced evidence which prima facie was sufficient to prove his title, it was really unnecessary for the Magistrate to take further evidence and that it could not be said that the petitioner had no reliable evidence in support of his denial of the existence of public right in respect of the disputed plot. In (3) Muni Lal Agarwala V. Public of Bhagalpur (A.I.R. 1941 Pat 38) Agarwala, J. (as he then was) held that the provisions of Section 139A are clearly designed to ensure that where, there is reliable evidenced support of the denial of the existence of public right, the Magistrate shall have no jurisdiction to pronounce on the cogency of that evidence but refer the matter to a Civil Court. The decision in the case of (1) Thakur Sao (I.L.R. 4 Pat 783-D.B.) was followed by another Division Bench of this Court in (4) Ramkripal Singh V. Superintendent, Way & Works, E.I.R., Gaya (A.I.R. 1945 Pat 309) and it was pointed out that Section 139A only required evidence and not proof. The Magistrate had no jurisdiction to weigh evidence and decide on which side the balance leaned. The Magistrate had no jurisdiction to weigh evidence and decide on which side the balance leaned. The requisite condition was that upon the materials before him the Magistrate should have no reason to think that the evidence was false. In the case of (5) Sukh Lal Gope V. Satyadeo Prasad (A.I.R. 1951 Pat 311), Sarjoo Prasad, J. (as he then was), following the case of (1) Thakur Sao (I.L.R. 4 Pat 783), explained the provisions of Section 139A in the following words:-- The ORDER :itself discloses that he (the Magistrate) seems to have taken evidence of the opposite party, as in his ORDER :he refers to a fard ab pasi produced by them, and he also appears to have allowed the opposite party to cross-examine the witnesses produced by the petitioners in the proceeding under Section 139A. In my opinion, there appears to be some misconception about the nature of the procedure to be adopted under Section 139A................ As I have said, at that stage it is not for him (the Magistrate) to take evidence of the opposite party. It is only for him to see whether there is reliable evidence in support of the denial of the existence of any public right in respect of the disputed lands. That evidence may not be complete for the purpose of negativing the public right claimed if balanced with the other evidence and materials on record adduced by the other side. It is only at that stage in the nature of an ex parte print facie evidence, and if that evidence is per se reliable, then the Magistrate should hold his hands and refer the parties to have their dispute settled in the Civil Court. The matter came up again for consideration by a Division Bench in (6) Darsan Ram V. The State (A.I.R. 1959 Pat 81) and their Lordships expressed themselves in the following words:-- He the Magistrate has no jurisdiction to weigh the evidence and decide on which side the balance leans. The criterion is that the Magistrate should find evidence supporting the denial, which he can pronounce reliable. If there is such an evidence, it is sufficient to oust his jurisdiction to continue the proceedings further. The criterion is that the Magistrate should find evidence supporting the denial, which he can pronounce reliable. If there is such an evidence, it is sufficient to oust his jurisdiction to continue the proceedings further. The enquiry envisaged in Section 139A, is in the nature of an ex parte summary enquiry, and what the Magistrate is to see is whether there is a prima facie reliable evidence in support of the denial and not that the non-existence of the public right should be affirmatively proved. It is, therefore, not the duty of the Magistrate to take evidence of both the sides and then to judge if the party against whom the ORDER :has been made has succeeded in establishing the non-existence of the public right. x x x The enquiry being of a summary character, it is not intended that the parties who complained of the obstruction should be asked to adduce evidence to contradict the evidence of denial of the public right. The law requires that he should take evidence only in support of the right and base his conclusion on that evidence independent of what evidence the other party may have in possession to prove the contrary. When the object of the enquiry is to ascertain if there was reliable evidence in support of the denial, it is obvious that the only party who should be called upon to adduce evidence in support of such denial is the party denying the existence of the public right. The persons complaining of the obstruction or nuisance are out of the picture at this stage. If the evidence adduced by the party against whom the ORDER :is made is legal and reliable, there is an end of the matter, and the Magistrate cannot but stay his hands and refer the parties to the civil court. The impugned ORDER :in that case was set aside on the ground that the Magistrate wrongly permitted both the parties to adduce evidence and then he reached his conclusion. In (7) Ramdhani V. The State (1965 B.L.J.R. cv) Ramratna Singh, J., while dealing with the procedure laid down in 139A, Code of Criminal Procedure, held that the Magistrate should have considered only the evidence adduced on behalf of the opposite party, because at that stage the opponents of the opposite party has no locus standi. In (7) Ramdhani V. The State (1965 B.L.J.R. cv) Ramratna Singh, J., while dealing with the procedure laid down in 139A, Code of Criminal Procedure, held that the Magistrate should have considered only the evidence adduced on behalf of the opposite party, because at that stage the opponents of the opposite party has no locus standi. If the Magistrate found that there was any reliable evidence in support of the denial of the existence of public right by the opposite party, he was required to stay the proceedings until the matter has been decided by a competent civil court. In (8) Rukmini Raman Singh V. Hardeo Mandal (A.I.R. 1970 Pat 207) also a similar view was expressed and it was held that the enquiry envisaged under Section 139A was in the nature of an ex parte summary enquiry and what the Magistrate was to see was whether there was a prima facie reliable evidence in support of the denial and not that the non-existence of the public right be affirmatively proved. 4. The aforesaid decisions go to show that so far as this Court is concerned it is settled, that the enquiry envisaged in Section 139A is in the nature of an ex-parte summary enquiry based on a prima facie reliable evidence in support of the denial; that the non-existence of the public right need not be affirmatively proved and that at that stage the applicant under Section 133 has no locus standi either to cross-examine the witnesses examined in support of the denial or to produce his own witnesses. We are bound by the Bench decisions of this Court referred to above and also agree with the views expressed by the learned Single Judge of this Court. It must, therefore, be held that the learned Magistrate acted without jurisdiction in permitting the first party (applicant under Section 133) to cross-examine the witness adduced on behalf of the petitioner. 5. In the result, the application is allowed and the ORDER :of the learned Magistrate is set aside. The case is sent back to him for disposal in accordance with law. Narain, J. 6. I agree. I would, however, like to add a few words. The reason why the petitioners dispute the right of the opposite party to cross-examine their witness is founded upon the words used in Section 139A(2). The case is sent back to him for disposal in accordance with law. Narain, J. 6. I agree. I would, however, like to add a few words. The reason why the petitioners dispute the right of the opposite party to cross-examine their witness is founded upon the words used in Section 139A(2). The opening words of the Sub-section are "If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings........". The point debated is what is reliable evidence. The contention is that reliability of evidence can be ascertained only by testing a witness by cross-examination. This is how the question whether the witness should be cross-examined or not has been canvassed in this case. 7. This Court has consistently held that in ORDER :to find reliable evidence under Section 139A(2) the witness cannot be allowed to be cross examined nor the applicant under Section 133 can be allowed to lead evidence. That is why the expression "ex parte prima facie evidence" has been used in (5) Sukh Lal Gope V. Satyadeo Prasad (A.I.R. 1951 Pat 311 supra), and "ex-parte summary enquiry" has been used in (6) Darsan Ram V. The State (A.I.R. 1959 Pat 81 supra). 8. Not only such has been the trend of law in this Court but this view has gained ground also in the Calcutta High Court, Allahabad High Court, Kerala High Court and the then Nagpur Judicial Commissioner's court. In the case of (9) Jai Ram Singh V. Bhuley (A.I.R. 1953 All 27) it was held by the Allahabad High Court that in ORDER :to find out reliable evidence the Magistrate is not to weigh the evidence produced by both parties. Similar view has been expressed by the Calcutta High Court in (10) Atul Krishna Sahoo V. The State (A.I.R. 1966 Cal 215). There it has been laid down that it is not the function of the Magistrate to weigh the evidence to come to the conclusion as to whether the alleged right does or does not exist. The evidence has to be taken as it stands and it has to be seen whether, on the face of it, it could be concluded that the evidence was false and, therefore, unreliable. The evidence has to be taken as it stands and it has to be seen whether, on the face of it, it could be concluded that the evidence was false and, therefore, unreliable. That there is no scope for weighing the evidence to find whether the alleged right exists or does not exist has been laid down in the case of (11) C.P. Veeran V. Kuruvilla (A.I.R. 1960 Ker 211). In (12) Mahabir Prasad Bhagwandin V. Pitamber Prasad (35 CriLJ 145) the Nagpur Judicial Commissioner's Court has held that the Magistrate has to consider the evidence solely from the point of view of the person who produces it and find whether the evidence considered ex parte is genuine and tends prima facie to support the existence of private right or the non-existence of any public right as urged by the party. 9. Learned counsel for the opposite party could not distinguish these cases; instead he relied upon two decisions of the Allahabad High Court and one of the Orissa High Court to support his contention that even in the summary proceeding under Section 139A (2) the witness could be cross-examined. It is true that these rulings support the contention of the opposite party. In (13) Mt. Chunni V. Emperor (A.I.R. 1938 All 653) it has been observed that it is no doubt open to the Magistrate to allow the witnesses, if produced by the person denying the public right, to be cross-examined, but he cannot allow the opposite party to produce definite evidence to the contrary and then proceed to weigh the evidence on both sides in ORDER :to decide finally whether the alleged public right does or does not exist. In (14) Budha Rai V. Emperor (A.I.R. 1948 All 115) it has been laid down that the duty of the Magistrate is to determine whether there is some reliable evidence, i.e., evidence which he has no reason to think false, in support of the denial and for that purpose he may allow the witness called in to be cross-examined. 10. These two decisions no doubt support the case of the opposite party, but the point to be noticed is that in a later decision (A.I.R. 1963 Allahabad 27-supra) the Allahabad High Court itself has not followed the aforesaid two earlier decisions of that court. Similar is the situation in the Calcutta High Court. 10. These two decisions no doubt support the case of the opposite party, but the point to be noticed is that in a later decision (A.I.R. 1963 Allahabad 27-supra) the Allahabad High Court itself has not followed the aforesaid two earlier decisions of that court. Similar is the situation in the Calcutta High Court. In (15) Kishorimohan Pramanik V. Krishnabihari Basak (A.I.R. 1931 Cal 527) it was laid down that the Magistrate in ORDER :to satisfy himself whether there was reliable evidence in support of the denial, might allow cross-examination of the witnesses adduced by the second party in support of such denial. The Calcutta High Court, however, did not follow this decision in the later case of (10) Atul Krishna Sahoo (A.I.R. 1966 Cal 215-supra). Therefore, the decisions of the Allahabad High Court and the Calcutta High Court, which have not been later followed by those very High Courts, cannot serve as a guide in the present case. 11. Now remains the consideration of the decision of the Orissa High Court. (16) Kartika Ram V. Jagannath Misra (1964 CriLJ 248) says that the rival party would be entitled to show that such evidence was not reliable and this could be done either by cross-examining the witness of the petitioner or by adducing witnesses on his behalf. Reference was made to the case of (6) Darsan Ram (A.I.R. 1959 Pat 81 supra) which denied such a right and it was not followed. No doubt, this decision of the Orissa High Court runs counter to the view maintained by the Patna High Court, by reason of the fact that it is a single Judge decision of that court whereas decisions of the Patna High Court, to which reference has been made above, are of Division Bench, it is not possible to follow the view of the Orissa High Court. 12. Reference must also be made to one observation of Verma, J. made in (17) Harnandan Lal V. Rampalak Mahato (A.I.R. 1939 Pat 460). There his Lordship has pointed out what is a good test of a reliable evidence: But a good test seems to be this, that if the evidence adduced stands unrebutted the public nature of the right will be demolished. There his Lordship has pointed out what is a good test of a reliable evidence: But a good test seems to be this, that if the evidence adduced stands unrebutted the public nature of the right will be demolished. Taken in isolation, this sentence may mean that according to Verma, J., the witness could be cross-examined or evidence could be adduced by way of rebuttal, but reading the facts of the case this does not seem to be his Lordship's intention. His Lordship agreed with the views of Mohammad Noor, J. and did not lay down that the right existed for cross-examination of the witnesses examined. Therefore, a solitary statement occurring in one of the JUDGMENT :s of this Court, and taken in isolation, cannot be construed to support the opposite party. 13. That the view which this Court has consistently taken, and with which we respectfully agree, is correct, will be apparent if we look to the law that prevailed before the introduction of Section 139A (2). This has been referred to in (18) Govinda Goundan V. Ayi Goundan (A.I.R. 1939 Mad 465) where after a preliminary ORDER :under Section 133 had been made, the opposite party appeared before the Magistrate and contended that the place in question was in their private possession and thus denied the public right. It was observed in that case: Before that amendment, no doubt, it was permissible and proper for the Magistrate to take evidence on both sides. But now what is to be decided is whether the denial of the public right by the second party is supported by any reliable evidence and if there is any reliable evidence in support of such denial, the Magistrate has no option but to stay his hands and to refer the parties who moved the Magistrate to take action to go to the Civil Court. 14. There is yet another reason why cross-examination of a witness is not contemplated by Section 139A (2). The reason is that the matter is to be finally decided by a competent civil court and that is why Legislature has not made any provision for such a cross-examination in this summary proceeding. 14. There is yet another reason why cross-examination of a witness is not contemplated by Section 139A (2). The reason is that the matter is to be finally decided by a competent civil court and that is why Legislature has not made any provision for such a cross-examination in this summary proceeding. This view of mine finds support from the observation made by Ross, J. in (1) Thakur Sao's case (I.L.R. 4 Pat 783--Supra) to which reference has just now been made by my Lord Anwar Ahmad, J. For the reasons set out above, the application has to be allowed. Application allowed