BHRAMARBAR DAS Vs. NANDAKISHORE SAHOO AND ANR.

JUDGEMENT

(1.) THE Petitioner challenges the order of the Sub -Divisional Magistrate, Athagarh dated 3 -4 -1981 whereunder the learned Magistrate has directed to remove the alleged obstruction caused by construction of a Ring Bundh obstructing tree flow of water from the Government plot No. 474 recorded as Kundijhar.

(2.) MR . Ram, the learned Counsel for the Petitioner submitted that the entire proceeding is vitiated for non -compliance of the provisions of Section 137 of the Code of Criminal Procedure inasmuch as after the Petitioner appeared before the Magistrate on receiving the notice Issued under Section 133 of the Code and denied the existence of public right with respect to the alleged construction and no enquiry was made as contemplated under Sub -sections (1) and (2) of Section 137 of the Code. The learned Magistrate proceeded to the trial as envisaged under Section 138 of the Code. A combined reading of Sections 133, 137 and 138 of the Code makes it clear that if the person against whom an order had been issued under Section 133 of the Code appears before the Magistrate and denies the existence of any public right, then the Magistrate before proceeding to enquiry under Section 138 must first make some preliminary enquiry to find out whether there is any reliable evidence in support of such denial. This preliminary enquiry contemplated under Sub -section (2) of Section 137 cannot be obliterated and the Magistrate cannot proceed to the further enquiry under Section 138 in case Section 137(1) of the Code is attracted. On the facts and circumstances of this case, it is not the submission of Mr. Sahu, the learned Counsel for opposite party No. 1 that Section 137 is not attracted but he contends that in this case the said provision has been complied with and in support of that refers to the order of the Magistrate dated 5 -8 -1980. A perusal of the said order does not show that the Magistrate kept in mind at that stage the enquiry contemplated under Sub -section (2) of Section 137. A bare reading of the said order make it clear that no enquiry had been conducted by the Magistrate at that stage.

(3.) IN the ultimate analysis, therefore, I hold that Section 137(1) of the Code is attracted to the facts and circumstances of the case and the proceeding is vitiated for non -compliance with the enquiry contemplated under Section 137(2) of the Code, I would therefore set aside the order of the Magistrate dated 3 -4 -1981 and remit the matter to the learned Magistrate who would enquire into the matter under Section 137(2) and then proceed further in accordance with law.