1. This rule is directed against an order whereby a conditional order under Section 133, Criminal P.C., was made absolute. The rule was issued on ground 2 alone of the petition and that ground was that the procedure as laid down under Sections 139-A and 137, Criminal P.C., had not been followed. It appears that a notice was at first served on the petitioner to show cause why he should not be prosecuted under Section 283, I.P.C., and the petitioner, on the notice being served on him, appeared and showed cause. Thereupon, proceedings were drawn up against him under Section 133 of the Code and, when the petitioner appeared and showed cause by saying that his objection was the same as contained in his first petition, the learned Magistrate proceeded to enquire into the matter whether there had been any obstruction and, having come to the], finding that there had been an obstruction, made the conditional order absolute. The procedure followed by the learned Magistrate was, in our opinion clearly wrong in law. When the petitioner, on receipt of the notice of the proceedings under Section 133, appeared in Court, the first duty of the Magistrate was to question him whether the petitioner denied the existence of public right in respect of the pathway alleged to have been obstructed. This the Magistrate did not do and he proceeded, as stated before, to enquire into the matter whether there had been any obstruction. The order of the learned, Magistrate shows that there was some evidence before him, evidence which he nowhere said was unreliable, to indicate that the path was a private path. If the Magistrate had before him any evidence of this nature, it was, under the provisions of Section 139-A, Criminal P.C., incumbent on him to stay his hand immediately, until the matter of the existence of public right was decided by a competent civil Court. This again the learned Magistrate did not do in the present case.
2. We are, therefore, of opinion that the order of the learned Magistrate cannot be sustained. The rule is, accordingly, made absolute. The order passed by the Magistrate, making the conditional order under Section 133, Criminal P.C., absolute, is set aside and it is directed that he do proceed with the proceedings which he started under Section 133 in accordance with law, after complying with the mandatory provisions of Section 139-A of the Code.