1. This is an application in revision by two persons Mt. Chunni and Sikandar against an order passed by a Magistrate of the First Class under Section 133, Criminal P.C., which has been confirmed in revision by the learned Sessions Judge of Agra. The relevant facts of the case may briefly be stated as follows : It appears that the two applicants purchased a piece of land from one Shan Mohammad and started building a house thereon. A notice was served upon them by the Chairman of the local Town Area Committee to the effect that they were encroaching upon a public way and asking them to stop the construction. When they failed to comply with that notice, the Chairman of the Town Area Committee made a complaint to the District Magistrate whereupon a proceeding under Section 133, Criminal P.C., was instituted. The Magistrate issued a conditional order as required by Section 133 directing the applicants to remove the construction which obstructed a public way and to show cause why that order should not be enforced against them. In the notice which was served upon the applicants they were asked to appear in Court on a certain date to show cause against the order. In obedience to that notice they appeared in Court and put in a written statement. There is nothing in that written statement to show that they denied the existence of a public way.
2. Under Section 139-A, Criminal P.C. it was clearly incumbent upon the Magistrate to question the applicants as to whether they denied the existence of the public way, but there is absolutely nothing on the record to show that any such enquiry was made. Having thus questioned the applicants the Magistrate was bound, if they denied the right of way, to proceed to enquire into the matter. It is perfectly clear that the law provides for two distinct stages in any enquiry under Chap. X, Criminal P.C. The first stage is prescribed by Section 139-A, Criminal P.C., and it is only when the provisions of that Section have been complied with and when the Magistrate finds that there is no reliable evidence in support of the denial of the alleged public right by the persons against whom the conditional order is issued that the Magistrate should commence the second stage of the enquiry as provided by Section 137, Criminal P.C. It is further clear that the law does not contemplate the decision by a Magistrate making a summary enquiry under Chap. X, Criminal P.C., of any question of title upon weighing evidence produced on both sides. All that a Magistrate is 'required to do under Section 139. A, Criminal P.C., is to hold an enquiry merely to satisfy himself that there is or is not some prima facie evidence in support of the denial of the public right by the person on whom the conditional order is served. In dealing with this part of the enquiry it is no doubt open to him to allow the witnesses, if any, produced by the person denying the public right to be cross-examined, but I do not think that he can allow the opposite party to produce definite1 evidence to the contrary and then proceed to weigh the evidence on both sides, in order to decide finally whether the alleged public right does or does not exist. In support of this view I may refer to several cases decided by this Court, for example, Muhammad Khalil v. Emperor : AIR1936All356 and Janardan Sarup v. Emperor : AIR1937All12 .
3. What the learned Magistrate did in the present case was to start an enquiry at once as required by Section 137, Criminal P.C. He put no question to the applicants as to whether they admitted or denied the alleged right of public way but asked the parties to produce their evidence, and it was the complainant who produced his evidence first. Having recorded all that evidence, the learned Magistrate weighed it and arrived at the result that there was no reliable evidence in support of the denial of the right of public way. In adopting that procedure he obviously travelled far beyond his province. At this stage I may refer to the case in Ata Mohammad v. Abdul Rahman (1937) 24 A.I.R. Lah. 676 decided by the Lahore High Court. In that case, which is on all fours with the present one, it was definitely held that the procedure adopted by the Magistrate was illegal. In the present case the learned Magistrate having finally decided that there was a right of public way proceeded to make his conditional order absolute. The applicants went up in revision to the learned Sessions Judge of Agra, but he refused to interfere on the ground that in his opinion the procedure laid down by Section 139-A, Criminal P.C., had been substantially complied with. For the reasons given above, I am entirely unable to agree with that view, I think it is clear beyond any doubt that the procedure adopted by the learned1 Magistrate in this case was illegal and defective and the order passed by him must therefore be set aside. The result therefore is that I allow this application and set aside1 the order passed by the learned Magistrate.