ORDER
Dibyendu Bhusan Dutta, J.
1. None appears for the petitioners. Heard the learned Advocate for the opposite party No. 1 at length. The materials placed before me could bring to light the following facts:-
At the instance of the opposite party No. 1 an application under Section 133, Cr.P.C. was filed in the Court of Sub-Divisional Magistrate, Diamond Harbour, complaining of obstruction by the petitioners here in respect of a private path way comprised within several plots over which the opposite party No. 1 appears to have claimed right by the virtue of long user. The learned Magistrate called for a report from the O.C Mandirbazar. The O.C. enquired into the matter and submitted a report stating that there is a village pathway over the said dags and that the said pathway was being used by the parties since long. The report further discloses the fact that the opposite party No. 1 has no alternative pathway and that the petitioners had closed that pathway by bamboo and other materials. The report does not say that this pathway was being used by the villagers as a whole or that it was a public pathway. In the sense it is understood in Section 133(1), Cr.P.C. Acting on this police report the learned Magistrate passed a conditional order as contemplated under Section 133(1), Cr.P.C. directing the present petitioners to remove the said obstruction or to appear on 2-4-1996 and show cause why the said order should not be made absolute. On 2-4-1996 the second parties of the said proceeding under Section 133, Cr.P.C. appeared and filed show cause and it is submitted by the learned Advocate for the opposite party No. 1 that in the said show cause the petitioners or, in other words, the second party there, denied the existence of the public pathway. Under Sub-section (1) of Section 137, Cr. P.C. whenever a conditional order is made under Section 133 for the purpose of preventing obstruction in the use of any way which is lawfully used by the public, on the appearance before him of the person against whom the order is made, the Magistrate is under statutory obligation to question him as to whether he denies the existence of any public right in respect of that way. There is nothing in the order dated 2-4-1996 to suggest that the Magistrate did question the petitioners on the point as suggested above. It is also not the case of the opposite party No. 1 that the petitioners were, infact, questioned in the manner contemplated under Sub-section (1) of Section 137. The fact remains that on filing show cause the second party, that is to say the petitioners did deny the existence of a public right in respect of the way in question. Sub-section (1) of Section 137 mandates an enquiry by the Magistrate into the matter, under such circumstances. There is nothing on record to suggest that such an enquiry was ever made by the learned Magistrate. Once the existence of public right is denied, the Magistrate is bound to enquire into the matter and under Sub-section (2) of Section 137, if he finds in such an enquiry that there is some reliable evidence in support of such denial, he is bound to stay the proceeding until the matter of the existence of such right is decided by a competent Court. The Magistrate can proceed according to Section 138 only when he finds no evidence in support of such denial under such an enquiry. Sub-section (2) of Section 137 would not be attracted here in view of the fact that there was no failure on the part of the petitioners to deny the existence of a public right of the nature referred to above. The materials on record would at once make it clear that without launching an enquiry as contemplated under Sub-section (1) of Section 137 and without giving any opportunity to the petitioners of adducing any evidence in support of his denial the learned Magistrate by his order dated 22-7-1996 can be said to have made the conditional order absolute and directed removal of the obstruction inasmuch as the removal of the obstruction can be directed by the learned Magistrate only when a conditional order is made absolute. When there was denial of any public right in respect of the concerned pathway at the instance of the person against whom the conditional order was passed, there was absolutely no scope for directing straightway the removal of the alleged obstruction without first recording a finding that there is no reliable evidence in support of the alleged denial. The Magistrate cannot have any jurisdiction to pass even a conditional order under Section 133(1), Cr.P.C. until and unless he has the information that unlawful obstruction has been caused to a way which is lawfully used by the public. The Magistrate appears to have passed the conditional order on the police report and the information furnished by the said report, as I have already observed, does not disclose the existence of a public pathway as contemplated under Section 133, Cr.P.C. In the circumstances, I have no hesitation to hold that the learned Executive Magistrate had acted wholly without jurisdiction in making the conditional order and directing removal of the obstruction in terms of that conditional order. The procedure followed by the learned Magistrate is perse not warranted by law. Accordingly, I have no option but to quash the proceeding altogether. In the circumstances, the revisional application succeeds and the impugned orders are hereby set aside. Ad interim stay granted is hereby vacated.
2. Let a copy of this order be communicated to the court below at once for his guidance.