Party No. 1. Bheraram and three others, made an application under sec. 133, Cr.P.C., in the court of Sub-divisional Magistrate, Deedwana, on May 16, 1967, stating therein that there was public way 16 ft. wide, in village Ransisar. Party No. 2, Gangaram and Khemaram, committed encroachment thereon on May 12, 1967, reducing its width to about 5 ft. This obstruction caused a great deal of inconvenience to the general public. Besides, there was every possibi-lity of breach of the peace. The petitioners, therefore, prayed that the obstruction should be ordered to be removed in accordance with sec. 133, read with sec. 137 Code of Criminal Procedure. On receipt of the above application, Sub-divisional Magistrate inspected the site that very day and issued an order that the obstruction should be removed by party No. 2 within 3 days, failing which the same would be got removed by the court. On May 22, 1967, Gangaram filed a reply, denying the fact that the width of the public way was about 16 ft. He alleged that the public way was only about 10 ft. wide and that he had raised construction not on the public way but on his own land, obtained by him from the Panchayat through a Patta. He further stated that his construction was about 1 ft. away from the public thoroughfare, Khemaram, in his reply, admitted to have committed en-croachment on the public thoroughfare, and stated that he would do away with it if the same was removed by Gangaram On May 23, 1967, evidence produced by party No. 1 was recorded. On May 27, 1967, witnesses produced by party No. 2 were examined. That day arguments were also heard and the case was subsequently disposed of on June 2, 1967, ordering Gangaram and Khemaram to remove the obstruction.

2. Aggrieved against the above order, a revision application was filed by Gangaram in the court of learned Sessions Judge, Merta, but the same was rejected on February 8, 1968. Dissatisfied with the above order Gangaram has filed the present revision-petition, challenging the order of Sub-divisional Magistrate, Deed-wana, dated June 2, 1967, as also that of learned Sessions Judge. Merta, dated February 8, 1968.

3. Contention of learned counsel for the petitioner is that Gangaram denied the fact that there was any public way on the land which was in his possession in accordance with the Patta obtained from the Panchayat. He further urged that when such a denial was made in the court of Sub-divisional Magistrate, it was incumbent upon it to start proceedings according to sec. 139-A, and not to jump to sec. 137, Cr.P.C, and dispose of the case after recording evidence of both the parties. Learned counsel further urged that provisions of sec. 139-A, are mandatory and their non-compliance by the court vitiates the entire proceedings.

4. Learned counsel for Bheraram and others supported the judgment of Sub-divisional Magistrate as also that of Sessions Judge, Merta. The main contention of learned counsel for party No. 1 is that the provisions of sec. 139-A, are directory in nature and that their non-compliance would not affect the decisions of the courts below, unless they caused substantial prejudice to party No. 2.

5. Sec. 139-A, Cr.P.C. was inserted by the Code of Criminal Procedure (Amendment) Act, 1923 (18 of 1923), in agreement with previous decisions, which held that the Magistrate could stay proceedings if he was satisfied that there was a bonafide dispute as to a private right. The object of the section is to prevent the Magistrate arrogating to himself functions and duties of a civil court, and instituting a detailed inquiry in respect of the civil rights of the parties. The section requires that when a person, served with an order under sec. 133, Cr.P.C. appears, the Magistrate shall ask him whether he denies the existence of the public right in question. In case of denial the Magistrate is bound to conduct an inquiry into the matter in accordance with the provisions of sec. 139-A, Cr.P.C., before undertaking inquiry referre

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