BRAHMDEO SINGH Vs. INDRADEO SINGH

JUDGEMENT

(1.) THIS application is disposed of on a preliminary question of law raised at the bar. It is, therefore, not necessary to enumerate the facts of the case.

(2.) THE order under revision, having been passed after taking evidence, oral and documentary, in my view is an order under Section 138 of the Code of Criminal Procedure (hereinafter referred to as 'the Code').

(3.) THE Code specifically provides in Section 137 that the moment there is a denial of existence of any public right, the Magistrate has to enquire into that question first before proceeding to deal with matter under Section 138 of the Code. This procedure in between the initiation of the proceedings under Section 133 and final order under Section 138 of the Code is a mandatory one, the failure where of will make the final order under Section 138 an illegal one.