ORDER

This Revision Petition is directed against the order passed by the Sub-Divisional Magistrate, Coondapur on 3rd July 1967 in M. C. 3 of 1966 on the file of his Court in a proceeding under Section 133 of the Code of Criminal Procedure. In that proceeding a preliminary order against the Respondent was passed to remove the obstruction alleged to have been caused by him in a mamool pathway in Abbedi village. The petitioner had alleged that there existed a mamool pathway passing through S. Nos. 92, 245, 102/1 and 101 of Abbedi village and that the respondent was obstructing the use of the said pathway. It was further alleged by him that the pathway was a public pathway. But the respondent contended that the pathway was a private cart track and not a public pathway as alleged by the petitioner. The trying Magistrate was of the view that the pathway was not a public pathway as alleged by the petitioner and by the order in revision set aside the preliminary order passed by him.

2. Mr. Jagannatha Shetty, learned counsel for the petitioner argued that the Magistrate has not followed the obligatory provision contained in Section 139-A of the Code of Criminal Procedure and therefore the order made by him is liable to be set aside. He submitted that the Respondent had denied that the pathway was a public pathway. Whether or not there was a bona fide dispute with regard to the existence of the public pathway, it was incumbent on the Magistrate to make an enquiry first as contemplated in Section 139-A of the Code of Criminal Procedure which he has not done. I think the contention advanced on behalf of the petitioner is well founded. Section 139-A of the Code of Criminal Procedure provides:

"(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......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......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) A person, who has, on being questioned by the Magistrate under sub-section (1) failed to deny the "existence of a public right of the nature therein referred to or who, having made such denial has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial, nor shall any question in respect of the existence of any such public right be inquired into by any jury appointed under Section 138."

3. It is thus clear that when an application is filed under Section 133 of the Code of Criminal Procedure on the ground that a certain person has put up an obstruction on a path, which is alleged to be a public path, the Magistrate should send a show cause notice to the counter-petitioner and when he or his representative appears, the Magistrate should question him as to whether he denied the existence of the public way; and if he did, the Magistrate has to enquire into the matter and if he finds reliable evidence in support of the denial, he should stay the proceedings until the question is decided by a competent civil court. If on the other hand, he finds that there is no reliable evidence in support of the denial, he has to proceed under Section 137 of the Code of Criminal Procedure.

4. In order to appreciate the contention advanced at the Bar, it is necessary to state here certain facts which would be a material for the determination of the question whether the Magistrate has complied