The learned Magistrate must proceed under S. 137, Criminal P.C. before making a conditional order absolute under S. 139(a)(2).

This is a reference by the learned Additional Sessions Judge. Tripura, recommending that the order of the learned Magistrate First Class, Sonapura, dated 23-10-62, be set aside.

2. The facts out of which this reference arises are briefly as follows :

On the prayer of Rasaraj Sil (First party) a proceeding under S. 133, Criminal P.C. was started against Jafar Ali, Dinu Mia and Mahendra Chandra Tripura (Second party). The petition was filed on 1-9-61 and on 23-9-61 the learned Magistrate passed an order under S. 133, Criminal P.C. promulgating a conditional order and asking the second party members to remove the obstruction from the way within 15 days from the date of the receipt of the order or if they object to do so for moving the Court for setting aside or amending the order. It appears from the record that the two 2nd party members duly entered appearance and the learned Magistrate in accordance with the provisions of S. 139(a)(1) questioned them whether they denied the existence of the public right and the two 2nd party members denied the right and the 3rd member Mahendra Chandra Tripura remained absent. It appears that on 6-12-61 the 2nd party members filed a written statement and in spite of that they were examined under S. 139(a)(1) of the Criminal P.C. on 4-1-62. Thereafter, the 2nd party members prayed for time to summon their witnesses and 18-4-62 was fixed for the evidence of the 2nd party members. That on 30-5-62, the second party members were present with 6 witnesses but the case could not be taken up. Thereafter the case was again adjourned on 27-8-62. On 27-8-62, the first party was present and the second party was absent and the date was fixed for 27-9-62. Thereafter, on 23-10-62 the date was fixed for discussion and examination of the witnesses of the 2nd party members. But on that date the first party Rasaraj Sil was present but the second party was absent. As the second party did not produce the witnesses on the date of hearing, so the learned Magistrate thought that the second party has got no evidence to produce and hence made the conditional order passed on 23-9-61 absolute.

3. Being aggrieved by this order of the learned Magistrate, the second party presented an application before the learned Additional Sessions Judge for making the reference under S. 438, Criminal P.C. The learned Additional Sessions Judge, on perusal of the record, came to the conclusion that the procedure adopted by the learned Magistrate was illegal and hence it should be set aside, therefore he has made this reference.

4. At the time of argument it transpired that the petitioners had already left for Pakistan, therefore, I heard the learned counsel for Rasaraj Sil.

5. The sole point for determination in this case is whether the order of learned Magistrate dated 23-10-62 is erroneous or not.

6. In this case, from the records, it appears that the learned Magistrate while following the procedure laid down under S. 139(a) of the Criminal P.C. enquired from the second party members whether they denied the existence of the public right in question. The second party members denied it and therefore the learned Magistrate asked the second party to produce reliable evidence. When the second party did not produce reliable evidence, the learned Magistrate without proceeding under Ss. 137 and 138, Criminal P.C. made the order absolute under S. 139(a)(2). According to S. 139(a) he should have proceeded under S. 137, Criminal P.C. before passing the final order. The order therefore passed by the learned Magistrate making the conditional order absolute is erroneous and hence it must be set aside.

7. The learned counsel for Rasaraj Sil frankly conceded that the order of the Magistrate dated 23-10-62 is erroneous.

8. I, therefore, accept the recommendation of the learned Additional Sessions Judge and set aside the order of learned Magistrate dated 23-10-62 and remand the case back to him for proceeding under S. 137, Criminal P.C. before passing the fina