Non-compliance with the procedure under Section 139-A of the CrPC vitiates the proceedings conducted under Section 137.

1. This is reference under Section 438 of the Code of Criminal Procedure by the District Magistrate, Rupar recommending that the order dated September 10, 1969 passed by the Sub Divisional Magistrate holding in proceedings under Section 133 of the Code that the place in dispute is a thoroughfare be set aside and that the matter in dispute be determined by a competent Civil Court. The facts leading to the case are as under :-

Jaswant Singh and Gurbachan Singh are brothers. They constructed a wall in front of their house. Jagir Singh and others lodged a report with the police saying that the respondents had encroached upon public place and action be taken against them for that encroachment under Section 133, Criminal P.C. The police put up before the Sub-Divisional Magistrate a report to the effect that the respondents had by construction of a wall in a public place committed encroachment. On October 4, 1968, the Magistrate passed a conditional order under Section 133 of the Code directing for removal of the encroachment by demolition of the wall within ten days of the date of the receipt of the order or else show cause against its demolition. After the service of the copy of the order was effected upon the respondents the case eventually came up on January 3, 1969. On that day, both the petitioners and the respondents were present in the Court of the Sub-Divisional Magistrate. The Magistrate directed that the evidence of the petitioners be recorded. The Magistrate, however, proceeded to record the evidence of the respondents at first on April 24, 1969. On the conclusion of the evidence of the respondents, he recorded the evidence of the petitioners. After having recorded the evidence of both the parties, the Magistrate made inspection of the spot on August 28, 1969. In his order, he has discussed the evidence of witnesses of both the parties and also taken into consideration the note pertaining to the inspection of the spot. Relying upon his personal view consequent upon inspection of the spot, he held that the place was a public place and consequently the action as taken against the respondents for removal of the encroachment was fully called for.

2. While conducting proceedings in pursuance of notice issued under Section 133, Criminal P.C., the Magistrate has completely ignored to consider the provisions of Section 139-A of the Code. He has conducted enquiry under Section 137 of the Code. Before he could do so, he must have complied with the provisions of Section 139-A. Under Sub-Section (1) of S.139-A, the Magistrate, when the parties appeared before him after issue of notice under Section 133, should have questioned the respondents as to whether they denied the existence of any public right in respect of the place, in which they had constructed the wall and if they denied that fact, the Magistrate had to enquire into the matter. As the language of Sub-Section (1) of Section 139-A indicates, the provision is mandatory. It is obligatory upon a Magistrate to so question the respondent or respondents and if the existence of any public right in the place in dispute encroached upon is denied, he has got to hold enquiry into the matter. The nature of enquiry is provided in Sub-Section (2) of S.139-A. It is laid down therein that the Magistrate has to ask for evidence from the respondents in support of their above-said denial and if he finds that the evidence is reliable, he has to stay his hands and to discontinue the proceedings and pass the order that the matter of existence of a public right in the place in dispute be determined by a competent Civil Court. As given in Sub-Section (3) of S.139-A, it is only upon failure on the part of the respondents to adduce reliable evidence in support of their denial that proceedings could be initiated under Section 137 of the Code and the evidence recorded in the same manner has to be recorded in a summons case. In the present case, the Magistrate has given a complete go-bye to the