1. This is a reference by the learned Additional Sessions Judge, Bundi, recommending that the order of the Sab-Divisional Magistrate, Bundi, dated 28-1-1954, making his conditional order under Section 133 of the Criminal Procedure Code, absolute against the applicants Madansingh and Shrimati Kanwarbai be set aside.
2. Parties have not appeared. I have gone through the judgments of both the lower Courts as well as the record or the case. The learned Additional Sessions is perfectly justified in saying that the learned Sub-Divisional Magistrate, was wrong in proceeding under Section 137 of the Criminal Procedure Code before complying with the Provisions of Section 139(A). Under Section 139(A), where an order is made under Section 133 for the purposes of preventing obtruction, 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, river, channel or place and if he does so, the Magistrate, shall under Section 137 or Section 138, inquire into the matter.
In this case, no such question as is required by Section 139 (A) was put to the applicants, although they raised the point in their written statement that the land in dispute was not the public property but was the private property of the non-applicant. The learned Magistrate did not inquire into the matter as required by Section 139 (A). It was, therefore, clearly a mistake on the part of the Magistrate to proceed under Section 137 without complying with the provisions of Section 139(A). It was held in the case of Uma Kanta v. Kalipada AIR 1933 Cal 790 (A):
Where in proceedings under Section 133, Criminal P. C., the opposite party denies, the existence of a public right in respect of the land in question, it is the duty of the Magistrate to hold an inquiry under Section 139-A with a view to ascertaining whether there is any reliable evidence in support or the denial on the part of the opposite party, and to record a clear finding on the point before proceeding further. He cannot make his original order absolute under Section 137 without recording any finding under Section 139-A.
In the case of Mt. Ram Kali v. Kripa Shanker AIR 1933 All 615 (B) also, it was held that:
Where a Magistrate passes an order under Section 137 without holding any proceedings under Section 139-A, but based on his own observation and documents filed, his order is ultra vires.
A similar view was taken by the Lahore High Court in the case of Nanumal v. Emperor AIR 1939 Lah 452 (C). This Court also in the case of Jai Kishan v. The State 1054 Raj LW 175 (D) held that a Magistrate cannot proceed under Section 137 without first complying with the provisions of Section 139 (A). Thus there are abundant authorities in support of the view taken by the learned Additional Sessions Judge.
3. The reference is accepted, the order of the learned Sub-Divisional Magistrate dated the 28th January, 1954 making his conditional order under Section 133, Criminal P. C. absolute is set aside and he is directed to decide the case in accordance with law after first complying with the provisions of Section 139 (A).