The questions that fall for determination in this revision stemming from a proceeding u/s. 133 of the Criminal Procedure Code, 'the Code' for short, is whether the proceeding was inva­lid for breach of the provisions contained in Sees. 137 and 141 of 'the Code' ? If so, whether the impugned order dated 10.9.84 passed by the Sub-divisional Magistrate (Executive), North Lakhimpur in Misc. Case No. 333/84 u/s. 138 of 'the Code' is invalid, illegal and liable to be set aside ? If appropriate procedure has not been followed should the entire proceeding be quashed or it should be allowed to continue from the stage where the learned Magistrate committed the error of law ?

2. This is a proceeding u/s. 133 of 'the Code'. The appli­cants (opposite party) herein were interested to see that the general public get adequate water supply from the rivulet named "Gogola Mornoi". It appears that the rivulet is the fountain head of water supply to many villages including the applicants' village. The stream being the life blood, the opposite party could not tolerate when the petitioner, Shri Thaneswar Bora and others put obstructions impeding free flow of water, on the plea that they had started a fishery by taking loan from the Government and the obstruction put by them was to divert the water course to catch fish.

3. Mr. Phukan, learned counsel for the opposite party is. justified in submitting that on the side of the petitioner it was an assertion of 'private right' to fish for his personal gain whereas the villagers (opposite party) were fighting for life and health' of the villagers. On receipt of the complaint u/s. 133, a competent Magistrate passed a conditional order requiring the petitioners to remove the blockade set up by them. It also appears that one of the opposite party removed the obstruction. At least one amongst the party realised that his action was agai­nst "public interest”. He is Gaya Ram Gogoi. Accordingly his name was struck off from the list of second party.

4. In the instant case learned Magistrate has completely failed to comply with the provisions of Section 137(1) of "the Code" inasmuch as he did not ask the members of the oppo­site party, on their appearance before him, as to whether they denied the existence of public right in respect of the river or channel. As such, the moot question that arises for considera­tion is, whether the provision of sec. 137 (1) of 'the Code' is mandatory or directory ?

5. Sections 133 to 143 of 'the Code' deal with proceedings for removal of public nuisance or unlawful obstruction from any pub­lic place or from any way, river or channel etc. It is thus seen that the Magistrate can assume jurisdiction to decide whether a party should remove any obstruction, provided the obstruction amounts to public nuisance or unlawful obstruction in any public place or way, river or channel. If a private right is affected the provisions ate not attracted nor should the Magistrate assume jurisdiction to pass a final order u/s. 138 of 'the Code'. How­ever, if public right is jeopardised or obstructed the Magistrate can proceed to hear and make a final order u/s. 138 of 'the Code'. The applicant may assert public right but that by itself is not enough. The party against whom a conditional order u/s. 133 is made for removal of the nuisance or the obstruction should be personally asked as to whether he affirms or denies the existence of any public right alleged by the first party. If the party against whom a conditional order has been made u/s. 133 of 'the Code' ad­mits the existence of such right the Magistrate can straight way pro­ceed to determine the case u/s. 138 of 'the Code' upon taking evidence. However, if the party against whom a conditional or­der has been made denies the existence of public right and thereby intends to take away the jurisdiction of the Magistrate to decide the rights of the parties, the Magistrate must hold an enquiry, and, if in such enquiry he finds that "there is relia­ble eviden

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