- (1.) THE short question arising for determination in this case is whether a petitioner making an [application Under Section 133, Criminal Procedure Code (hereinafter referred t0 as the Code), can ask for the setting aside of the order of the trial Magistrate under Sub-section (2) of Section 137 of the Code on the ground that the trial Magistrate held no enquiry under Sub-section (1) of Section 139-A of the Code? This question has arisen in the following circumstances.
(2.) HAKAM Singh petitioner filed an application Under Section 133 of the Code against Niranjan Singh and Hazara Singh respondents on the ground that they had illegally encroached upon a public thoroughfare leading from Fatehgarh to Kurali and Chatauli railway stations by bringing that atea under cultivation and enclosing it with a fence. This act of 'the respondents was stated to have taused considerable difficulty to the people using that thoroughfare. The Sub-Divisional Magistrate, Kharar, to whom the application was made, made a conditional order on 21-1-1960 directing the respondents to remove the encroachment from the thoroughfare within fifteen days and to show cause against the order before Tehsildar cum Magistrate 2nd Class, Kharar, by 8-2-1960 in case they had any objection. The Magistrate 2nd Class, Kharar, thereafter proceeded to hear the parties. He recorded their evidence and visited the spot and came to the conclusion that there had been no encroachment on the public thoroughfare. It was accordingly ordered that no further action was necessary in the matter and the application be filed.
(3.) THE petitioner then filed a revision and the learned Sessions Judge, Ambala, held that it was essential for the trial Magistrate to have held an enquiry Under Section 139-A of the Code before proceeding Under Section 137 of the Code. The learned Sessions Judge has accordingly recommended for quashing the order of the trial Magistrate and for directing him to proceed in accordance with the provisions of Section 139-A.;