JUDGMENT

P.N. Bakshi, J. - This is a reference by the Sessions Judge, Saharanpur, dated 2nd July, 1971 for quashing the order of the SDM Saharanpur dated 24th May, 1971 in proceedings under section 133 Cr.P.C.

2. Nand Ram filed an application under section 133 Cr.P.C. alleging that Har Pal and others were causing obstruction in a public pathway which was in the enjoyment of the general public. On inquiry having been made, the learned Magistrate on a consideration of the re- port of Naib Tahsisdar passed a conditional order directing Harpal and others to remove the constructions within the period specified in the conditional order, or to show cause against the order on 4th May, 1971. On the said date Nand Ram put in appearance and requested for an adjournment to enable him to file a written statement. The case was adjourned to 24th May, 1971. On that date when the case was called out the parties appeared. Harpal and others applied again for adjournment of the case. The said adjournment was refused by the court. Counsel appearing on behalf of Harpal and others, therefore, under- took to file an objection. No objection was, however, filed on their behalf. The case was repeatedly called out. No objection having been filed the conditional order was made absolute by the SDM under section 136 Cr.P.C. on 24th May, 1971.

3. Harpal and others filed a revision before the Sessions Judge Saharanpur for quashing the aforesaid order. The Sessions judge has made a recommendation to this Court. He is of the view that once the opposite-party has put in appearance in pursuance to a show cause notice issused under section 133 Cr. P, C. it is mandatory for the Magistrate to question him as to whether he denies the existence of such a right. If the opposite) party denies the existence of such a right it is the duty of the Magistrate to in- quire whether there is any reliable evidence in support of such a denial and if he does find such a reliable evidence to exist he will stay the proceedings. If. however, the opposite-party on being questioned does not deny the existence of a public right it would be open to the Sessions judge to proceed under sections 137 and 138 Cr.P.C.

4. Counsel' appearing on behalf of Nand Ram urged that the opposite-par- ties Harpal and others having failed to file a written statement in pursuance to a show cause notice under section 133 Cr.P.C. it would be open to the Magistrate to make the conditional order absolute under section 136 Cr.P.C. I do not agree with this contention of the learned counsel. The provisions of S. 136 Cr.P.C. would only be attracted if the person against whom the notice has been issued under section 133 Cr.P.C. has failed to appear and show cause against the said notice. In this particular case the opposite-parties have put in appearance and merely because they have not filed written statement it cannot lead to the inference that they have failed to appear. Appearance as contemplated under section 136 Cr.P.C. is the physical appearance of the opposite-party. As soon as the opposite party appears physically before the court in pursuance to the notice issued under section 133 Cr.P.C. it is the bounden duty of the Magistrate under section 139-A Cr.P.C. to question him as to whether he denies the existence of any public right. That has not been done in this case. I am in full agreement with the Sessions Judge, Saharanpur that the procedure prescribed under law has not been followed by the SDM Saharanpur.

5. I. therefore, accept this reference and quash the order of the SDM dated 24th May, 1971. The record of the case shall-be sent back to the court below to proceed with the case according to law, in the light of the observations made by me above.