ORDER

G.C. Mathur, J. - The Applicants filed a complaint u/s 133 Code of Criminal Procedure against the opposite parties alleging that the opposite parties had obstructed public Nala No. 573 on account of which their fields were inundated and their crops destroyed. They prayed that action u/s 133 Code of Criminal Procedure be taken for removal of the obstruction.

2. On 5-9-1967 the SDM passed a conditional order u/s 133 Code of Criminal Procedure. The opposite parties appeared and contested the application. They denied the existence of any public right in the Nala and also the allegation that they had obstructed the Nala. The SDM then held an inquiry u/s 139-A Code of Criminal Procedure and on 18-11-1967 held that the opposite parties had failed to adduce reliable evidence in support of the denial of the public right. He then proceeded with the case u/s 137 Code of Criminal Procedure. It appears that no evidence was led after the order u/s 139A was passed by the opposite parties but on 20-1-1968 the SDM made a local inspection of the place without informing any of the parties. He placed his inspection report on the record. By an order dated 10-5-1968 the SDM held that the Nala was not a public one and that there was no obstruction therein. He accordingly dropped the proceedings u/s 133 Code of Criminal Procedure. The Applicants went up in revision against this order but the same was dismissed by the Temporary Civil and Sessions Judge, Mirzapur. Hence this revision.

3. Learned Counsel for the Applicant has challenged the order of the SDM on the following two grounds:

(i) that after recording an order u/s 139-A that there was no reliable evidence in support of the denial of the public right it was not open to the Magistrate at a subsequent stage u/s 137 to go into this very question and to hold that there was no public right in the Nala;

(ii) that the SDM acted illegally and improperly in making a local inspection behind the back of the parties and in basing his order mainly on his inspection report.

4. Ch. X of the Code of Criminal Procedure deals with public nuisance. Section 133 in this Chapter provides for the making of a conditional order requiring the person causing obstruction or nuisance etc. to remove the obstruction or nuisance. Section 134 provides for the service or notification of the conditional order. Section 135 provides that the person to whom the order is addressed should either carry out the order or appear before the court to show cause against the same. Section 136 provides that if such a person does not appear and show cause he shall be liable to the penalty u/s 188 IPC and the conditional order shall be made absolute. Section 139A should really have been introduced after either Section 135 or 136. It comes into operation on the appearance of the person against whom the conditional order is directed. When such a person appears the court is required to question him as to whether he denies the existence of the public right before proceeding Under Section. 137 or 138, If he denies the existence of the public right the Magistrate is required to inquire into the matter. If the Magistrate finds that there is any reliable evidence in support of such denial then he is to stay the proceedings until the matter of the existence of the public right has been decided by a competent civil court. If he finds that there is no such reliable evidence he shall proceed according to the procedure laid down Under Sections 137 and 138 as the case may be. Sub-section (3) of Section 139-A provides the consequence of an order u/s 139-A(2) and it reads thus:

139-A(3). A person who has, on being questioned by the Magistrate Under Sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial, nor shall any question in respect of the existenc