S.K. Sen, J.
1. This revisional application is directed against an order passed by Shri B. Majumdar, Magistrate, First Class, Vishnupur in a proceeding under Section 133 of the Criminal P. C. There was a complaint against the petitioner of having obstructed a public 'nala' through which the villagers discharged water. After an enquiry the learned Magistrate drew up proceedings under Section 133 of the Criminal P. C., calling upon the second party to show cause why he should not be directed to clear the obstruction. The second party appeared and filed a written statement denying the existence of the public right of the villagers to discharge water through the 'nala'. The learned Magistrate thereupon proceeded to make an enquiry under Section 139A of the Criminal P. C. and after such enquiry he was not satisfied that there was any reliable evidence in support of the denial by the second party as to the existence of a public right of the villagers in the 'nala'. He forthwith passed a final order purporting to act under Section 140(1).
2. I must hold that the order of the learned Magistrate was bad, because after the learned Magistrate has found on enquiry that there is no reliable evidence in support of the second party's denial of the public right claimed, he must proceed under Section 137 or 138 of the Code, that is to say, either he must make an enquiry by hearing witnesses of both sides as in a summons case, or if the accused applies for jury he must appoint a Jury fixing a tone for the Jury to meet and hold the enquiry, and fix another time within which they are to submit their verdict to the Magistrate, and thereafter the learned Magistrate must proceed under Section 139 of the Criminal P. C. Section 140 (1) only provides that when an order has been made absolute under Section 136 or 137 or 139 the Magistrate shall give notice of the same to the person against whom the order has been made, and direct him to perform the act directed within a certain time, and inform him that in case of disobedience he will be liable to be convicted under Section 188 of the I. P. Code. The order under Section 133, Criminal P. C., is not made absolute under Section 140, but after the order has been made absolute, notice in terms of Section 140 (1) is to be issued to the person concerned.
3. Accordingly the order of the learned Magistrate purported to have been passed on 29-9-1958 under Section 140 (1) is set aside, and the learned Magistrate is directed to proceed under Section 137 or 138 of the Code, as the case may be, according as the second party does not or does ask for a Jury.
4. It may be mentioned that Mr. Amiya Lal Chatterjee also raised the point that since the second party showed that the 'khal' or 'nala' was not depicted on the c. s. map the learned Magistrate was bound to stay the proceedings and direct the parties to the Civil Court. I do not agree with this contention. The learned Magistrate was entitled to make his own assessment as to the evidence and if he was not satisfied that the evidence in denial of the public right was reliable evidence, he was entitled to proceed further with the proceedings instead of staying the same.
5. The Rule is disposed of accordingly.