' Ghulam Mustafa, petitioner, moved S.D.M. Mirpur under section 133, Criminal Procedure Code and alleged that the passage used by public was obstructed by Muhammad Ismail, Muhammad Latif and Sabir, as such they were liable for causing public nHsance. The application was moved on January 26, 1991 when, after making a preliminary inquiry, a conditional order was passed by the Magistrate. The respondents filed objections wherein they denied the allegation made in the application. The Magistrate proceeded under section 137, Cr.P.C., and ordered the petitioner to lead his evidence. Ultimately, it was agreed, on May 23, that the Magistrate should visit the spot and dispose of the matter in the light of the actual position of the passage in dispute. Thus, on making spot inspection, on May 25, the Magistrate recalled the conditional order by directing the petitioner to seek redress of removal of obstrction in a civil Court. This order is assailed in the present petition.
2. The sole point addressed by the leamed counsel for the petitioner is that the Magistrate failed to comply with the provisions of section 139-A, Criminal Procedure Code, as such the order was bad in law. Ch. Muhammad Taj, the leamed counsel for the opposite side, supported the impugned order.
It was emphasised that the petitioner failed to prove the existence of public right in the passage in question, as such the application was rightly disposed of in the manner of the impugned order.
3. Section 139-A, Criminal Procedure Code, postulates procedure prior to an inquiry into the merits of the case, as envisaged under sections 137 and 138. The object of the provision is to eliminate an elaborate inquiry regarding the rights of the parties. This is so, as when the existence of public right is denied, the Magistrate has to inquire into the matter of denial of public right and in case there is reliable evidence in support of such denial, the proceedings have to be stayed. Conversely, if there is no reliable evidence in support of the denial, the Magistrate has to embark upon an elaborate inquiry with regard to the rights of the parties. Thus, the legislature thought it fit to make the provisions mandatory. In the circumstances, it is enjoined upon the Magistrate, who made the conditional order, for the purpose of preventing obstruction, nuisance or danger to public in the use of any way, river, channel or place, to question the party against whom complaint is made and ask him as to whether he denied the existence of public right in respect of the subject of dispute. The respondents were to be questioned before proceeding under section 137 or 138. The concensus of judicial verdict provides ample support to the aforesaid view.
' The import of the provisions of section 139-A, Cr.P.C., was construed in Hamid Ali's case, AIR 1930 Lah. 1046, as: "In proceedings under section 133 in respect of alleged public right of way, if the respondent denies the existence of the alleged right, subsequent proceedings under section 137 are otherwise, ignoring the provisions of section 139-A and without first coming to a finding under section 139-A whether there is any reliable evidence in support of respondent's denial, are ultra vires."
' In Ata Muhammad's case, AIR 1937 Lah. 676, Mr. Justice Blacker observed: "Where in a case a conditional order is passed against a person for obstruction of the public way under section 133, Criminal Procedure Code, and in an enquiry such person denies the public right of way, the Magistrate must first take proceedings under section 139-A, Cr.P.C."
' In Akulananda's case, AIR 1954 Orissa 210, the learned Judge arrived at the conclusion: "The provisions of section 139-A are mandatory and when the party appears in pursuance of order under section 133 the Magistrate is bound under section 139-A to ask the party whether he denies the existence of any public right of way and if there is such a denial the Magistrate should hold an enquiry and take evidence. If instead of ascertaining whether the party denies the existence of any public right the Magistrate hears the evidence of both parties and passes a final order under section 137, the order cannot be supported."
' In Abdul Latif s case, PLD 1958 Kar. 513, it was observed: "The leamed Magistrate has also acted illegally in not complying with the provisions of section 139- A, Cr.P.C. That section, inter alia, provides that the Magistrate shall on the appearance before him of the person against whom the order (under section 133, Cr.P.C.) was made, question him as to whether he denied the existence of any public right in respect of.... Or place, and, if he does so, the Magistrate shall, before proceeding under section 137 or section 138, inquire into the matter. The learned Magistrate has not questioned the applicant as to whether he denied the existence of any public right in respect of the place where the mills are situated, and since he had to proceed under section 137, Cr.P.C, only after making inquiry as contemplated by the provisions of section 139-A(1) of the Cr.P.C., the action taken by the Magistrate becomes illegal."
4. In present case, as noticed earlier, the respondents or their counsel m were not questioned about the existence of public right in the passage in |dispute, so there was a dear departure, on the part of the Magistrate, from the procedure laid down under section 139-A, Cr.P.C. The order was obviously illegal. However, it is noticed that in their, objections, the respondents repudiated the allegations made by the petitioner in his application. Even if the aforesaid repudiation is taken as denial of existence of public right, even then it was essential for the Magistrate to hold an inquiry into the denial of public right and to give a conclusive finding on that score. The Magistrate, instead of holding an inquiry into the denial of public right and asking the respondents to provide proof in support of denial, thought it fit to inquire into the merits of the case by visiting the spot. The proceedings are, therefore, vitiated. The order of the Magistrate is set aside and the case is remanded to the Magistrate for fresh proceedings from the stage he departed from the mandatory procedure envisaged by section 139-A, Criminal Procedure Code. The petition is disposed of accordingly.