RAHANADDY PATWARY Vs. HASAN ALI JAMADAR

JUDGEMENT

(1.) This Rule has been issued upon grounds Nos. 2 and 3 of the petition. So far as ground No. 2 is concerned, there is no substance in it, as the learned District Magistrate did not pass the order instituting proceedings in the exercise of his Revisional Jurisdiction. He has made it perfectly plain that the order was passed after he took cognizance of the matter as a Court of Original Jurisdiction and that he did not revise the order of the other Magistrate but ordered the drawing up of proceedings under Section 133, Cr.P.C. as a Court of Original Jurisdiction.

(2.) The other ground is clearly well-founded. The procedure adopted in this case was not in conformity with what is laid down in Section 139-A, Cr.P.C., and Secs.137 and 138, Cr.P.C. It is quite clear that when there is a denial of the existence of the public right, it is the duty of the Magistrate to inquire into this matter and come to a conclusion under the provisions of Section 139-A and on the result of this conclusion would depend the question whether he should stay proceedings or should proceed under Section 137 or 138 Cr.P.C. This procedure has not been followed in this case. We think therefore, that the order passed by the Magistrate should be set aside and we do set it aside and direct that the proceedings be re- opened. The order passed by the Magistrate will be treated as one under the last part of Section 139A(2), Cr.P.C., and he will now proceed as laid down either under Section 137 or Section 138 as the petitioners desire him to do.

(3.) The Rule is made absolute.