SHARMA, J.—This is a reference by the Sessions Judge, Jaipur District in a case under sec. 133 of the Criminal Procedure Code recommending that the order of the Sub-Divisional Magistrate, Amber dated 4th April, 1952, be set aside and the Magistrate be ordered to proceed afresh under sec. 139A of the Criminal Procedure Code.

2. I have heard Mr. R. C. Sharma on behalf of Thakur Kalyan Singh, to be referred to as the applicant, and have gone through the record of the case. Under sec. 133, Criminal Procedure Code. "Whenever a District Magistrate, a Sub Divisional Magistrate or a Magistrate of the first class considers on receiving a police report or other information and on taking such evidence as he thinks fit, that any unlawful obstruction or nuisance should be removed from any way, river or channel which is or may be lawfully used by the public, or from any public place.........such Magistrate may take a conditional order requiring the person causing such obstruction or nuisance.........within a time to be fixed in the order, to remove such obstruction or nuisance......". After this order has been made for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way ........., the Magistrate is required on the appearance before him of the person against whom the order was made, to question him as to whether he denies the existence of any public right in respect of the way river etc. and if he does so, the Magistrate is required before proceeding under secs. 137 or 138 to inquire into the matter. In the present case what the Magistrate did was that after issuing conditional order under sec. 133(1) of the Criminal Procedure Code and on receiving the written statement of the applicant, he proceeded forthwith to record evidence under sec. 137 without complying with the provisions of sec. 139 (A) of the Criminal Procedure Code. The provisions of sec. 139 (a) (1) are mandatory and the Magistrate is not authorised to jump to the proceedings under sec. 137 of the Criminal Procedure Code without taking any proceedings under sec. 139 (A). The applicant was denying that the way in question was a public way and if proceedings under sec. 139 (1) had been taken, he would probably have been able to produce evidence to satisfy the Magistrate prima facie that the denial of the applicant was not altogether without substance and if the Magistrate had been so satisfied, he would have been bound to stay the proceedings untill the matter of existence of such right had been decided by a competent civil court. By omitting to take proceedings under sec. 139 (A) of the Criminal Procedure Code, the Magistrate has certainly prejudiced the applicant. The words of sec. 139(A) are quite clear but if any authorities are needed, I may cite the cases of Uma Kanta Chatterjee vs. Kalipada Chowdhury and another (1) (AIR 1933 Cal. 790), Raghunandan and others vs. Shew Nandan and others(2) (AIR 1932 All. 366), Mst. Ram Kali vs. Kripa Shankar and others(3) (AIR 1933 All. 615), and Nur Ali Shah vs. Natha(4) (AIR 1927 Lah. 745.). In the Calcutta case referred to above a conditional order was issued in respect of certain land which was alleged to be a public way. The party against whom the conditional order was made showed cause and denied the existence of any public right in the plot in dispute. The Magistrate without recording any finding under sec. 139 (A) proceeded to take action under sec. 137 and then made his conditional order absolute. It was held by a Division Bench that:—

"Where in proceeding under sec. 133, Criminal Procedure Code, the opposite party denies the existence of a public right in respect of the land in question, it is the duty of the Magistrate to hold an enquiry under sec. 139-A with a view to ascertaining whether there is any reliable evidence in support of the denial on the part of the opposite party, and to record a clear finding on the point before proceeding further If his finding is to the effect that there is

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