JUDGMENT Thomas, C.J. - This is an application in revision by Mahabir Chamar of Lakhia, a hamlet of Moharba, police station Nanpara, district Bahraich, against the order passed by Magistrate of the first class u/s 133 Code of Criminal Procedure. which was confirmed in revision by the learned Additional Sessions Judge of Bahraich. 2. Asharfi, opposite-party before me filed an application u/s 133 Code of Criminal Procedure. alleging that Mahabir and another person (not before me) had brought a public way under cultivation. It appears that Mahabir at first asked for some time to remove the obstruction but later on changed his mind. In the presence of both parties, the Magistrate passed a conditional order u/s 133 Code of Criminal Procedure. against Mahabir asking him to show cause within ten days. Mahabir filed a written statement in which he denied the existence of any public way. The Magistrate then issued the following order. As the opposite-party denies the existence of any public way, let evidence be taken u/s 139-A Code of Criminal Procedure. 3. Both the parties then produced witnesses and the learned Magistrate passed the following order. I make my order dated 24th April, 1945. absolute and direct the opposite-party to remove the obstruction within fifteen days from today and in case of disobedience he will be liable to the penalty provided by Section 88 Indian Panel Code. 4. It is against this order that the present application in revision has been filed. 5. It has been contended that it was incumbent on the Magistrate to record evidence u/s 137 Code of Criminal Procedure. Section 139-A of the Code lays down the procedure where the existence of a public way is denied and Clause (1) lays down that. Where an order is made u/s 133 for the purpose of preventing obstruction to the public in the use of any way...the Magistrate shall, on the appearance before him of the person against whom the order is made, question him as to whether he denies the existence of any public right in respect of the way...and if he does so the Magistrate shall, before proceeding u/s 137 or Section 138 inquire into the matter. Clause (2) lays down that If in such inquiry, the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay proceedings until the nuttier of the existence of such right has been decided by a competent civil court and, if he finds that there is no such evidence, he shall proceed as laid down in Section 137 or Section 138 Code of Criminal Procedure. as the case may require. 4. I have said above that the applicant before me denied the existence of any public way. Section 137 lays down that (a) If he appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case. (2) If the Magistrate is satisfied that the order is not reasonable and proper, no further proceedings shall be taken in the case. (3) If the Magistrate is not so satisfied, the order shall be made absolute. 5. In the present case the, Magistrate, after inquiry under the provisions of Section 139-A. Code of Criminal Procedure. made his conditional order obsolete without taking evidence under the provisions of Section 137 Code of Criminal Procedure. It may be mentioned that both parties in the inquiry u/s 139-A examined a few witnesses. 6. The learned Additional Sessions Judge has realized that the Magistrate was not justified in making his order absolute in an inquiry u/s 139-A Code of Criminal Procedure. but his reasoning is that as both parties had adduced evidence and there was no prejudice therefore the irregularity was cured by Section 537 Code of Criminal Procedure. I regret I am unable to agree with this contention. It his clear that the law provides for two distinct stages in an inquiry under Chapter X of the Code of Criminal Procedure. The first is prescribed by Section 139A and it is only when the provisions of that section have been complied with and when the Magistrate finds there is no reliable evidence in support of the denial of the alleged public right by the persons against whom the conditional order was issued that the Magistrate should commence the second stage of the inquiry as provided by Section 137 Code of Criminal Procedure. I am of opinion that in a case where a conditional order is passed (as is the case here) against a person for obstruction of a public way u/s 133 Code of Criminal Procedure. and on inquiry such person denies the public right of way, the Magistrate must first take proceedings u/s 139A before taking proceedings u/s 137. Both the stages must be complied with as the provision is mandatory and it is not a question of mere irregularity which can be cured by Section 537 Code of Criminal Procedure. 7. I, therefore, allow the application, set aside the order and direct that the Magistrate will dispose of the application according to law.