M. Fathima Beevi, J.
1. The revision petition is directed against the final order in M.P. 11/1983 of the Sub-Divisional Magistrate, Ottappalam. The revision petitioner is the respondent in the proceedings initiated Under Section 133, Cr.P.C., for the alleged obstruction caused by the petitioner to a pathway. Respondents 1 to 19 filed a petition before the Sub-Inspector of Police, Nattukal alleging that a public pathway is running through the eastern side of the petitioner's property from south to north and joining the Nattukal Kottapuram Panchayat road and that the petitioner has obstructed the pathway by putting up a fence. It was alleged that the said pathway was being used by the people of the locality.
2. The Sub-Divisional Magistrate passed a preliminary order Under Section 133(a), Cr.P.C., on 2-8-1983. The petitioner appeared before the Court below on 7-9-1983 and denied the existence of a public pathway and the obstruction of the same by the petitioner as alleged by respondents 1 to 19. The Sub-Divisional Magistrate recorded the evidence and finding that there is a public pathway and the same had been blocked made the conditional order absolute by the impugned order dated 16-5-1984. The petitioner being aggrieved has preferred the revision.
3. The main contention urged on behalf of the revision petitioner is that the order passed by the Sub-Divisional Magistrate is ab initio void because no enquiry whatsoever as contemplated Under Section 137(1) Cr.P.C., was conducted by the court below before proceeding Under Section 138 of the Code. It is submitted that the petitioner appeared before Court on 7-9-1983 on service of the preliminary order and denied the existence of a public pathway and the allegation of the respondents that the disputed pathway is being used by the public, that the learned Sub-Divisional Magistrate after recording the statement of the petitioner posted the case for the evidence of the petitioners without an enquiry as contemplated Under Section 137(1), the whole proceedings are therefore vitiated and the final order cannot therefore be sustained. The learned Counsel for the revision petitioner further submitted that the irregular procedure adopted by the Court below is not mere technical omission, that a civil suit has already been filed by the petitioner as O.S. 3/1984 before the Court of Munsiff-Magistrate, Mannarghat, for perpetual injunction restraining respondents 1,3,4,8 and 9 herein from entering into or interfering with the fence put up by the petitioner on the southern and northern portion of the petitioner's property touching the eastern compound wall, that an order of ad interim injunction was granted in that suit and serious prejudice is caused to the petitioner by the procedure adopted by the court below. In support of the ground urged the learned Counsel for the petitioner relied on the decisions reported in Jaswant Singh v. Jagir Singh AIR 1972 Punj & Har 192 : 1972 Cri LJ 792, Bejoy Krishna v. Provesh Ranjan : AIR1959Cal599 , Akulananda v. State : AIR1954Ori210 , Sudhakaran v. Dr. E.M. Georges 1972 Ker LR 471 : 1973 Cri LJ 542, Umakanta Chatterjee v. Kalipada Chowdhury AIR 1933 Cal 790 : 1934-35 Cri LJ 89. Avisumma v. Nabeesa Umma 1977 Ker LT 329 and Ram Autar v. State of U.P., : 3SCR9 . It has also been submitted that even on the merits the order cannot be supported because the witnesses examined admit the existence of a pathway on the western side of the petitioner's property and there is no proof for the existence of a public pathway on the eastern side of the petitioner's property and the respondents herein denied that they have signed the petition filed before the S.I. of Police, that even the evidence of the Section 1 would not go to show that there had been a pathway in existence as alleged. No mahazar or sketch is proved, no local inspection has been made and there is no sufficient material to warrant the conclusion arrived at by the Court below, it is pointed out. It is therefore argued that the order has resulted in gross miscarriage of justice and the same has to be set aside.
4. The respondents learned Counsel however maintained that there is no scope for any interference in revision stating that unless the finding is plainly perverse and erroneous there is no justification for reversing the findings recorded by the Court below. It is submitted that there was substantial compliance with the provisions of Section 137 and the petitioner had ample opportunity to support the denial of the public right by reliable evidence and no reliable evidence has been tendered and it is not therefore open to the petitioner to urge at this stage that public pathway does not exist. Relying on the decisions in Vengara Narayanan v. Orakkan Govindan ILR (1962) 1 Ker609 : 1963 (1) Cri LJ 819 and Sukh Ram v. Manohar Lal AIR 1960 Punj 377 : 1960 Cri LJ 993, the learned Counsel for the respondents submitted that unless prejudice can be clearly demonstrated the omission to strictly comply with Section 137(1) cannot be deemed to vitiate the Magistrate's order and that Section 137(1) is not mandatory but only a directory provision. The learned Counsel also referred to Ext. P1 registered document in which a pathway has been referred to as the boundary of the eastern property and Ext. P2(a) sketch of the property demarcating the pathway. The oral evidence according to the respondents' learned Counsel clearly establishes the case and there is no scope for any interference in revision.
5. Under Section 133 Cr.P.C. the Magistrate makes the conditional order when he is satisfied that unlawful obstruction has been caused to a public way and requiring the person causing such obstruction to remove such obstruction or if he objects so to do, to appear and show cause why the order should not be made absolute. Where an order is made Under Section 133 for the purpose of preventing an obstruction, 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 way and if he does so, the Magistrate shall before proceeding Under Section 138 inquire into the matter. This provision in Section 137(1) has been contravened in this case.
6. The petitioner herein appeared before Court on 7-9-1983. Even when recording the statement of the petitioner the Magistrate did not question him whether he denies the existence of any public right in respect of way. The petitioner has voluntarily stated that no such public way existed. Since the petitioner has thus denied the existence of the public right it was incumbent upon the Magistrate before proceeding Under Section 138 to enquire into the matter of the existence of the public right. Under Sub-section (2) of Section 137, 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 Court, and, if he finds that there is no such evidence, he shall proceed as laid down in Section 138. Thus the Magistrate gets jurisdiction to proceed Under Section 138 only on his finding that there is no reliable evidence in support of the denial of the existence of the public right. In a case where no inquiry into the matter of the existence of the public right is made and no finding such existence is arrived at, the further proceedings Under Section 138 would be without jurisdiction. What is contemplated Under Section 138 is only to determine whether the cause shown by the party against the preliminary order directing him to remove the obstruction is reasonable and proper.
7. There is fundamental difference between the two enquiries Under Section 137(1) and that Under Section 138. Where in reply to a notice issued Under Section 133 the party denies the existence of public right alleged to have been obstructed by him and urges an enquiry Under Section. 137(1), it is not proper and legal for the Magistrate to mix up the enquiries Under Section 137(1) and Section 138 which are fundamentally different and pass a composite final order upon them. It is the right of a party against whom a preliminary notice is issued to show that further proceedings should not be taken, if he can adduce reliable evidence in support of the denial of the existence of any public right in question and before proceedings Under Section 138 the Magistrate must give a finding on the point. The failure to make an inquiry under the mandatory provision of Section 137(1) cannot be ignored as mere irregularity. It is a question of jurisdiction to pass the final order. Merely because the Magistrate allowed both parties to adduce evidence, it cannot be inferred that the petitioner was aware that the Magistrate dispensed with the enquiry Under Section 137(1) and continued the proceedings Under Section 138. It cannot also be presumed that the Magistrate proceeded to act Under Section. 138 for failure of the petitioner to adduce evidence.
8. In Thomas Varkey v. Idicula John AIR 1951 Trav-Co 228 : 1951-52 Cri LJ 1250, Koshi, J., as he then was held that Section 137 contemplates two stages in the enquiry so much so the Magistrate was after finding that there was no reliable evidence in support of the denial of the right claimed, bound to proceed to hold the enquiry Under Section 134 or Section 135 as the case may be, and the order passed contrary to the provisions cannot be sustained, and the curative provisions of the Code are of no avail to validate it. It is also pointed out that when the party against whom the right is claimed denies it in his written statement, to call upon the party who claims the right, would be without jurisdiction and that the subsequent proceeding would all be void. The same view has been held in Kartik Ram v. Jagannath Misra 1964 (1) Cri LJ 248 decided by the Orissa High Court and the decisions referred to by the petitioner's learned Counsel. A contrary view has however been indicated in Vengara Narayanan v. Orakkan Govindan ILR(1962) l Ker609 : 1963(1) Cri LJ 819. In that case the court said that the questioning in Section 139-A of the Code of Criminal Procedure 1898 corresponding to Section 137(1) of the new Code is not mandatory, but is only a directory provision and unless prejudice can be clearly demonstrated, the non-questioning of the person concerned and recording a finding cannot be deemed to vitiate the Magistrate's order. On the facts the Court held that the Magistrate has substantially complied with the law and no prejudice has been caused to the revision petitioner and that an irregularity by not following the procedure laid down Under Section 139-A could be cured Under Section 537, Cr. P.C.
9. The preponderance of authorities as noticed is against this view. The Court also has not noticed the earlier decision in Thomas Varkey v. Idicula John AIR 1951 Trav-Co 228 : 1951-52 Cri LJ 1250 of considered the question of jurisdiction. A reading of Sub-sections (1),(2) and (3) of Section 137 clearly shows that the provision in Section 137(1) is obligatory and that Magistrate gets jurisdiction to proceed Under Section 138 only in a case where he finds that there is no reliable evidence in support of the denial of the public right. I am therefore in respectful agreement with the view that non-compliance of the provision of Sub-section (1) of Section 137 vitiates the whole proceedings and the subsequent proceedings cannot be sustained. In this view it is not necessary to express any opinion on the correctness of the findings on merits. The order has to be set aside and the matter restored to the Sub-Divisional Magistrate for fresh disposal in accordance with law. It has been brought to my notice that subsequent to the final order, the pathway has been restored by an order Under Section 141(2) without notice to the petitioner herein. When the matter is restored, the Sub-Divisional Magistrate will consider the objection on the question and pass appropriate orders in the circumstances of the case. The Magistrate will also consider the fact that a civil suit is pending between the parties and in that case whether it is necessary to continue the proceedings.
For the foregoing reasons the impugned order is set aside and I he case is remitted back for disposal afresh in the light of the above observations and directions.