Ahmed Ali Khan, J.
1. This Revision Petition is directed against the order passed by the Sub-Divisional Magistrate, Coondapur on 3rd July 1967 in M.C. 3 of 1966 on the file of his Court in a proceeding under Section 138 of the Code of Criminal Procedure. In that proceeding a preliminary order against the Respondent was passed to remove the obstruction alleged to have been caused by him in a mamool pathway in Abbedi village. The petitioner had alleged that there existed a mamool pathway passing through Section Nos. 92, 245, 102/1 and 101 of Abbedi village and that the respondent was obstructing the use of the said pathway. It was further alleged by him that the pathway was a public pathway. But the respondent contended that the pathway was a private cart track and not a public path, way as alleged by the petitioner. The trying Magistrate was of the view that the pathway was not a public pathway as alleged by the petitioner and by the order in revision set aside the preliminary order passed by him.
2. Mr. Jagannatha Shetty, learned Counsel for the petitioner argued that the Magistrate has not followed the obligatory provision contained in Section 139-A of the Code of Criminal Procedure and therefore the order made by him is liable to be set aside. He submitted that the Respondent had denied that the pathway was a public pathway. Whether or not there was a bona fide dispute with regard to the existence of the public pathway, it was incumbent on the Magistrate to make as enquiry first as contemplated in Section 139-A of the Code of Criminal Procedure which he has not done. I think the contention advanced on behalf of the petitioner is well founded. Section-189-A of the Code of Criminal Procedure provides:
(1) Where an order is made under Section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way...the Magistrate shall on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way...and if he does so, the Magistrate shall before proceeding under Section 137 or Section 138, inquire into the matter.
(2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Civil Court; and if he finds that there is no such evidence, he shall proceed as laid down in Section 187 or Section 188, as the case may require.
(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 existence of any such public right be inquired into by any jury appointed under Section 138.
3. It is thug clear that when an application is filed under Section 133 of the Code of Criminal Procedure on the ground that a certain person has put up an obstruction on a path, which is alleged to be a public path, the Magistrate should send a show cause notice to the counter petitioner and when ha or his representative appears, the Magistrate should question him as to whether he denied the existence of the public way; and if he did, the Magistrate has to enquire into the matter and if he find a reliable evidence in support of the denial, he shouldetiy the proceedings until the question ia decided by a competent civil court. If on the other hand, he finds that there is no reliable evidence in support of the denial, he has to proceed under Section 137 of the Code of Criminal Procedure.
4. In order to appreciate the contention advanced at the Bar, it is necessary to state here certain facts which would be a material for the determination of the question whether the Magistrate bas complied with the provision contained under Section 133-A of the Code of Criminal Procedure. The petition was filed before the Magistrate under Section 133 of the Code of Criminal Procedure on 5.8.1966. On the same day, the Magistrate directed the Station House Officer to submit his report after his inspection of the disputed pathway. The report of the Station House Officer was submitted on 21.2.1966. It appears from the record that another report was submitted by the Revenue Inspector on 5.4.1966 after inspection of the disputed pathway. Thereafter on 17.5.1966, a conditional order was made by the Magistrate and a notice was issued to the respondent. The respondent effected his appearance and filed his counter on 27.6.1966. He was questioned by the Magistrate on the same day. What the Magistrate did after filing of the counter by the respondent was that he straightway went on recording the evidence of the petitioner and he also recorded the evidence produced on behalf of the Respondent. I think Mr. Shatty is right in maintaining that the Magistrate should not have proceeded with the recording of the evidence of the petitioner. As stated above, Section 139A, provides that after the Respondent appears before him, he should question him as to whether he denied the existence of the pathway. In this case the respondent when questioned had denied the existence of the pathway. Therefore, the Magistrate should have enquired into the matter and if he found that there was reliable evidence in support of the denial, ho should have stayed the proceeding. If on the other hand he was of the opinion that there was no reliable evidence in support of the denial of the Respondent he should have proceeded under Section 137 of the Code of Criminal Procedure. It is dear in this case, that the Magistrate without enquiring into the matter whether there was reliable evidence in support of the denial as contemplated in Sub-sections (1) and (2) of Section 139-A of the Code of Criminal Procedure, straightway proceeded on recording the evidence of the petitioner and the respondent. Before he did so, he should have given a finding applying his mind whether there was reliable evidence in support of the denial of the respondent or not, which he has not done in this case. When the procedure provided under Section 139-A(1) and (2) is not followed, obviously the order of the Magistrate is not according to law. Therefore it is liable to be safe aside. The order passed by the Magistrate (on 3.7.1967) is thus set aside and the ease is remitted to the lower court with a direction that he should proceed with the case as laid down under Section 139 of the Code of Criminal Procedure as per above observation.