The provisions of section 139A of the Code of Criminal Procedure do not contemplate examination of evidence of the complainant of rebutting or contradicting the evidence led by the opposite party under this section, though recording of the complainants evidence would not by itself render the proceedings wholly illegal.

1. The record of this case has been forwarded to this Court by the learned Additional Sessions Judge, Rohtak, with a recommendation that the order of the learned Sub-Divisional Magistrate, Rewari, dated 6th of March, 1959, be set aside and the learned Magistrate be directed to try the case according to law afresh.

2. Ch. Ram Sarup has appeared before me in support of the reference and Mr. V. P. Prashar has opposed the recommendation. On a perusal of the record I find that Shri Manohar Lal had made an application under section 133, Code of Criminal Procedure, against Sukh Ram Singh, Sarpanch of village Gangaicha Ahir, to which he complainant also belongs. The allegations contained in the application are that Sukh Ram Singh had made an unlawful obstruction on a public thoroughfare by constructing a chabutra and this had narrowed down the thoroughfare. After recording preliminary evidence, the learned Magistrate issued a conditional order in pursuance of which Sukh Ram Singh Sarpanch submitted a written statement denying he unlawful obstruction as well as the existence of any public right in respect of the thoroughfare in question. The respondent, according to the learned Magistrate, was asked to lead evidence in support of his denial as required by section 139A of the Code of Criminal Procedure. Sukh Ram Singh Sarpanch in support of his plea, produced a resolution of the Panchayat by which the construction of this Chabutra was sanctioned and started and also led evidence that the impugned construction did not cause any obstruction to the thoroughfare. R. W. 1 Debi Sahai and R. W. 2 Parbhati Lal supported the denial of obstruction to the thoroughfare. Manohar Lal also produced evidence I support of his case. The learned Magistrate, after considering the entire evidence, observed that the respondents plea that the Panchayat had made the obstruction did not exonerate him or the Panchayat from making an unlawful construction which obstruct the thoroughfare and thereby causes inconvenience to the public in general; the fact of construction of the chabutra having been admitted by Sukh Ram Singh Sarpanch, the inconvenience resulting from the said construction was considered by the learned Magistrate to be amply established. The Magistrate also expressly observed that the evidence led by Sukh Ram Singh was not sufficient to lead tot he conclusion that there was no existence of the public right as alleged. Then comes the observation that Gram Panchayat had been constituted for the uplift of the villages and not for creating troubles, and that the Sarpanch in the present case had taken undue advantage of his position. With these remarks the conditional order issued by the learned Sub-Divisional Magistrate on18th of August, 1958, was made absolute under section 137(3) of the Code of Criminal Procedure and Sukh Ram Singh was directed to remove the obstruction within fifteen days.

3. The matter was taken up by way of revision to the Court of the learned Additional Sessions Judge, Rohtak, who after hearing the counsel and going through the record, observed that the learned Sub-Divisional Magistrate had not complied with the provisions of section 139A of the Code of Criminal Procedure which provides that before the Magistrate proceeds o record evidence under seciton137 of the Code of Criminal Procedure, he has to ascertain, whether the person to whom a notice is issued, denies the existence of the public right and if it so denied then the Magistrate is required to inquire whether there is any reliable evidence in support of such denial. The learned Additional Sessions Judge has remarked that the evidence of Sukh Ram Singh Sarpanch in support of his denial should have been recorded first and a decision given whether the encroachment had been made by him and whether there was o reliable evidence in support of the denial of the public right; according to him proceedings under S. 137 of the Code of Criminal Procedure could not be taken wit