Hon’ble Ramesh Sinha, J.—Heard Sri L.C. Pandey, learned counsel for the applicant, the learned AGA for the respondents and perused the record.

It appears that the Sub-Divisional Magistrate, Karvi, district Chitrakoot has proceeded against the applicants under Section 133(1) CrPC and passed the conditional order on 7.2.2011, in pursuance whereof the applicants filed a detailed objection denying the existence of public way on the disputed land. The learned Executive Magistrate, on receiving the objection, instead of deciding the question whether or not the disputed land is a public way, proceeded with the matter under Section 138 CrPC, vide his order dated 16.11.2012.

2. The learned counsel for the applicant submitted that when the applicant had pleaded that the land in suit is not a public way on spot, the learned Executive Magistrate was bound to decide that question before holding the proceeding under Section 138 CrPC. In this connection, the learned counsel for the applicant placed reliance on the provisions of Section 137 CrPC, which provides:

“137. Procedure where existence of public right is denied.

(1) Where an order is made under Section 133 for the purpose of preven