Where a provisional order is made under Section 133, Cr.P.C. for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate, on the appearance before him of the person against whom such an order was made, should question him as to whether he denies the existence of any public right in respect of the way, river, channel or place and if he does so, the Magistrate shall, before making the order absolute, inquire into the matter.
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If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter is decided by a competent court, if he does not find such evidence, he shall proceed as laid down in Section 138, Cr.P.C., viz., to take evidence in the matter as in a summons case, to make the order absolute. If the conditional or provisional order is reasonable and proper, or to drop the proceeding if the Magistrate is not satisfied that the order is reasonable and proper.
ADVERTISEMENTS:
It is clear from the above that the Magistrate’s jurisdiction to continue the proceeding ceases as soon as the party appearing before him denies the existence of the public right in question, and produces some reliable evidence, which is legal to support the denial, and he has to stay the proceedings until the matter of existence of such right has been decided by a competent court. (Section 137).