Failure to comply with the mandatory procedure in Sec.137 of the Code renders the final order under Sec.138 illegal.

1. This application is disposed of on a preliminary question of law raised at the bar. It is, therefore, not necessary to enumerate the facts of the case.

2. The order under revision, having been passed after taking evidence, oral and documentary, in my view is an order under Sec.138 of the Code of Criminal Procedure (hereinafter referred to as the Code).

3. Having heard the parties and perused the orders, I find that the first party-opposite party got a proceeding initiated under Sec.133 of the Code, alleging obstruction to public way and the learned Magistrate asked the petitioner to show cause and thereafter proceeded to deal with the matter finally under Sec.138 of the Code. The impugned order clearly indicates that in the show cause, the concerned road was denied to be a public way.

4. The Code specifically provides in Sec.137 that the moment there is a denial of existence of any public right, the Magistrate has to enquire into that question first before proceeding to deal with matter under S.138 of the Code. This procedure in between the initiation of the proceedings under Sec.133 and final order under Sec.138 of the Code is a mandatory one, the failure where of will make the final order under Sec.138 an illegal one.

5. In the present case this mandatory provision has been ignored and the orders impugned is vitiated on that account alone.

6. In the result, the orders impugned is set aside. The case is remitted to the Court below for fresh decision after complying with the provisions contained in Sec.137 of the Code.