MAHENDRA BHUSHAN, J.—This application under Section 482 Cr.P. C. is directed against the order passed in revision by the learned Sessions Judge, Sikar dismissing the revision of the petitioner filed in his Court against the order of the learned Sub-Divisional Magistrate, Sikar making conditional order issued under Section 133 Cr P. C. on 12-9-77 as absolute under Section 138 Cr.P.C. It arjses in the following circumstances:

2. An application was addressed by Madan Lal Sethi (to be referred as party No. 1) to the Honble Chief Minister, Government of Rajasthan mentioning therein that Ghisalal (hereinafter referred to as Party No 2 has constructed a wall in front of the gate of his house, as a result of which he cannot enter into his house, This application was forwarded to S. H. O. Khatu, District Sikar. who submitted a report to the learned Sub-Divisional Magistrate on September 4. 1977 for taking action under Section 133 (1) Cr. P. C. The learned Sub-Divisional Magistrate on receiving the police report aforesaid and considering that there is unlawful obstruction which should be removed from a way which is or may be lawfully used by the public, made a conditional order on September 11, 1977 under Section 133(1) Cr. P. C. requiring party No. 2, who is said to have caused obstruction on nuisance to remove such obstruction within 7 days or if he objects so to do, to appear before him and show cause why the order should not be made absolute. Party No. 2 put in appearance on 21-9-1977 and denied existence of any public right in respect of the way, in writing. The learned Sub-Divisional Magistrate first recorded statement of Madanlal (Party No. 1) and thereafter, at the request of the advocate for the parties ordered on 14-6-78 that first evidence of Party No. 2 should be recorded. After giving opportunity to Party No. 2, to lead evidence and Party No. 2 having failed to avail of that opportunity the learned Sub-Divisional Magistrate closed the evidence of Party No. 2 on August 17, 1978. Thereafter under Section 138 Cr. P. C. the conditional order made under Section 133 (1) Cr. P. C. on September 12, 1977 was made absolute. A revision was filed by Party No. 2 before the learned Sessions Judge who dismissed the same.

3. Two objections have been raised by the learned Advocate for Party No. 2 to the effect that:—

(1) Learned Magistrate has not complied with Section 137 Cr.P.C. and the entire proceedings are vitiated;

(2) Conditional order made under Section 133 (1) Cr. P.C. could not have been made absolute without recording evidence of the parties under Section 138 Cr. P.C.

4. According to the learned Advocate, once a party against whom conditional order is made under Section 133(1) Cr. P.C. puts in appearance, it is the duty of the Magistrate to question him as to whether he denies existence of any public right in respect of the way and if he so denies, the Magistrate must inquire into the matter before proceeding under Section 138 Cr. P.C. If on inquiry, the Magistrate finds that there is any reliable evidence in support of such denial, then he cannot proceed further and has to stay the proceedings until the matter of the existence of such right has been decided by a competent Court. In the instant case, it appears from the perusal of the file that Party No. 2 against whom the conditional order was made under sec 133(1) Cr.P.C. put in appearance on September 21. 1977 and the learned Magistrate did not question him about the existence of a public right in respect of the way. But on the same day, opposite party No. 2 in writing came out with a case that there was no public way existing and, therefore, the failure of questioning party No. 2 as required under Subsection (1) of section 137 Cr. P.C. is only an irregularity and does vitiate the inquiry. But it should not be understood that the Magistrates should not discharge the duty enjoined on them under the Law and it is expected of the Magistrate to comply with the provisions of law and to

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