ORDER H.G.P. Tripathi, J. - This revision arises out of proceedings u/s 133 Code of Criminal Procedure which has been pending in court since August 1960. The first order passed by the learned Magistrate on the 22nd of September 1961 was quashed by this Court on a reference made by the learned Civil and Sessions Judge, Bulandshahr and the case was remanded back to him to decide it afresh in accordance with law. It is really unfortunate that the present order of the learned Magistrate dated 31.7.1963 also suffers from an incurable legal defect and has to be quashed. 2. On a complaint filed by Bhikari Singh, a conditional order u/s 133 Code of Criminal Procedure was passed by the learned Magistrate asking the applicant to clear the encroachment from the alleged public way or to show cause. In response to the notice the applicant filed an objection on 23.11.l960 denying the existence of any public way. On 1.5.1961 the learned Magistrate vacated his order dated 12.8. 1960 and passed another conditional order to the same effect. Thereafter, it appears from a perusal of the order sheet of the case that the learned Magistrate proceeded to examine the evidence led by the parties and ultimately on 22.11.1961 passed an order making his order of 12th August 1960 which has already been vacated by him absolute. After the remand of the case to the Magistrate another order has been passed on 31.7.1963 making the conditional order dated 1.5.1961 absolute u/s 133 Code of Criminal Procedure on. the basis of the evidence which had alt ready been recorded when the earlier order of 22nd of September 1161 was passed. 3. I have heard the learned Counsel for the parties. 4. There can be no doubt that the procedure followed by the learned Magistrate is wholly unwarranted in law and as such it has vitiated the whole proceedings. As soon as an objection was raised by the applicant denying the existence of a public way, it was the duty of the Magistrate, first to hold an inquiry within the provisions of Section 139-A of the Code and if there was any reliable evidence in support of such denial, it was incumbent on him to stay the proceedings until the matter of the existence of such right has been decided by a competent civil court. 5. 5. In order to find out whether there was any reliable evidence in support of such denial or not, the learned Magistrate has only to examine the evidence produced by the party denying such right and then has to reach his own conclusion on the basis of such evidence as to whether a prima facie case in favour of such denial has been made out or not. At this stage he should not allow the other party to lead evidence and he has neither to analyse the evidence in support of such fact threadbare nor to weigh it in a manner as to reach a definite conclusion in support of the factum of such denial. 6. In the case of Lala Bissomal v. State (1) (1957 AWR 55;) it was held that the duty of a Magistrate u/s 139-A of the Code of Criminal Procedure is merely to see whether the denial of public right is frivolous or not. If the person who denies that right is able to produce some evidence, which prima facie there is no-reason to disbelieve, it is not for the Magistrate to examine the evidence on the other side by way of rebuttal and so forth and attempt to arrive at some final decision. A similar view was taken in the case of Jai Ram Singh v. Bhuley and Others (2) ( 1963 AWR 134 ). In the case of Darsan Ram Vs. The State and Others, AIR 1959 Patna 81 a Division Bench of the Patna High Court took the same view that the enquiry envisaged u/s 139-A is in the nature of an exparte summary enquiry, and what the Magistrate is to see is whether there is a prima facie reliable evidence in support of the denial and not that the nonexistence of the public right should be proved. It is, therefore, not the duty of the Magistrate to take the evidence of both the parties and then to judge if the party against whom the order has been made has succeeded in establishing the non-existence of the public right. 7. In the instant case, however, the learned Magistrate has examined the evidence produced by both the parties and then has reached his conclusion which is unwarranted in law. 8. In the result, the revision is allowed. 7. In the instant case, however, the learned Magistrate has examined the evidence produced by both the parties and then has reached his conclusion which is unwarranted in law. 8. In the result, the revision is allowed. The order passed by the learned Magistrate is quashed and the case is sent back with the direction that he will first hold proceedings u/s 139-A Code of Criminal Procedure initially and will reach his own conclusion whether there is any reliable evidence in support of the denial of existence of public way or not and shall then decide the proceedings in accordance with law.