JUDGMENT
P.K. Misra, J.
1. The members of second party in a proceeding Under Section 133, Code of Criminal Procedure, have filed this revision challenging the legality of the order dated 26th November, 1997, making the conditional order dated 14.10.1997 absolute and thereby directing the second party members to remove the trees standing on the disputed land.
2. It is not necessary to notice in detail the facts. Suffice if to say that after a notice Under Section 133(1), Cr. P.C. was served on the present petitioners, a written statement was filed denying the allegations made in the petition of the first party on the basis of which the proceeding Under Section 133, Cr. P.C. had been started. The scheme of the provisions contained in Part-B of the Chapter X of the Code of Criminal Procedure indicates that after making a conditional order Under Section 133(1), the said order may be served on the person against whom it is made. Sec. 135 envisages that the person against whom such order is made shall comply with the direction, or may appear in accordance with the said order and show cause against the same. In the present case, there is no dispute that the second party members, pursuant to the said conditional order, appeared and filed their show cause denying the allegations. The procedure thereafter is contemplated in Sec. 138 and as such, the Magistrate is required to take evidence in the matter as summons case and to decide the matter thereafter. This position is clear on a conjoint reading of Secs. 137 and 138 as well as the decision of this Court reported in (1990) 3 OCR 592 (Palau Dehury and Ors. v. Sarat Chandra Patra and others). Admittedly in the present case, the Magistrate has not followed the procedure indicated in Sec. 138, Cr. P.C. As such, the order passed by the Magistrate cannot be sustained. The impugned order is, therefore, set aside and the matter is remanded to the Magistrate to proceed in accordance with law after following the procedure contemplated in Sec. 138, Cr. P.C. It is made clear that the matter shall be decided in accordance with law on the basis of materials on record without being influenced by any observations made by the Magistrate in the impugned order dated 26th November. 1997. The parties are directed to appear before the Magistrate on 16th November, 1998.
The Criminal Revision is accordingly allowed.