ORDER D.P. Uniyal, J. - This application in revision is from the judgment of the Sessions Judge, Banda affirming the findings of the Magistrate that there was no reliable evidence in support of the denial of the public right of way as alleged by the complainant. 2. A man named Kamla complained to the Magistrate that the Applicants (objectors) had obstructed a public pathway lying across two plots and that action be taken against them u/s 133 Code of Criminal Procedure. On 17-4-1963 the Magistrate made a conditional order restraining the Applicants from obstructing the pathway. The latter filed an objection and adduced evidence in support of denial of the right of way in terms of Section 139-A Sub-section (2) Code of Criminal Procedure. The Magistrate thereupon recorded evidence of the complainant's witnesses in rebuttal and after weighing the evidence of both sides came to the conclusion that there was no reliable evidence in support of the denial of public right of way. 3. The point which arose for consideration was whether the findings recorded by the Magistrate were in accordance with law. The Learned Counsel submitted that the procedure adopted by the Magistrate was contrary to the provisions of Sub-section (2) of Section 139-A in that he had not only considered the evidence produced by the objectors in support of denial of the public right but also evidence tendered by the complainant to show the existence of such a right. On the language of Section 139-A it appears clear that what the Magistrate is required to do is to consider only the evidence of the objectors in order to see that there is a prima facie reliable evidence in support of such denial. 4. In Muhammad Khalil v. Emperor 1936 AWR 182 Allsop, J. observed: The duty of a Magistrate u/s 139-A Code of Criminal Procedure, as I understand it, is merely to see whether the denial of the public right is frivolous or not". The learned Judge further said that "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 evidence on the other side by way of rebuttal and so forth and attempt to arrive at some final decision. The Madras High Court in Govinda Goundan and Others Vs. The Madras High Court in Govinda Goundan and Others Vs. Ayi Goundan and Another, AIR 1939 Mad 465 , held that the Magistrate cannot allow the complainant to produce evidence to the contrary and then to proceed to weigh the evidence of both the sides in order to decide finally whether the alleged public right does or does not exist. The Learned Counsel strongly relied on certain observations made by Mootham, J. as he then was, in Budha Rai and Others Vs. Emperor, AIR 1948 All 115 . That was a case in which the Magistrate, after examining the evidence of the objector in support of the denial of public right, had summoned a witness u/s 540 Code of Criminal Procedure and alter considering the entire evidence had held that there was no reliable evidence in support of the denial. It had been contended that in as much as the Magistrate had taken into consideration the statement of a witness examined u/s 540 the finding recorded by him was vitiated. Dealing with this aspect of the matter, the learned Judge said: Nothing is laid down in the Code as to the form which that enquiry should take, and no restrictions are imposed upon the discretion of the Magistrate as to how he shall conduct the enquiry except such as can be inferred from the purpose for which the enquiry is intended. His duty is to determine not merely whether there is some evidence in support of the denial but whether such evidence is reliable--that is to say evidence which he has no reason to think is false and he may therefore allow the witnesses called in support of the denial to be cross-examined. The purpose of the enquiry is however such that it is not necessary, and therefore I think not intended, that the Magistrate should take the evidence of witnesses on behalf of the complainant, although there is nothing to prevent, should circumstances warrant such a course, the Magistrate himself calling a witness. The view expressed by Mootham, J. is not in any way inconsistent with Section 139-A. Indeed the Magistrate has power to call a witness u/s 540 if he considers it necessary, in the interests of justice, to do so. The view expressed by Mootham, J. is not in any way inconsistent with Section 139-A. Indeed the Magistrate has power to call a witness u/s 540 if he considers it necessary, in the interests of justice, to do so. It is one thing to say that the Magistrate has jurisdiction to call evidence u/s 540 and quite another that he may require the complainant to tender evidence in rebuttal. I am clearly of the opinion that the Magistrate acting u/s 139-A has no jurisdiction to call upon the complainant to lead evidence in rebuttal and that he is not required to weigh the evidence of parties in order to rind out which of the two versions is correct. 5. For the reasons given above I allow this revision, set aside the order of the Magistrate and direct that he shall determine the question as to the denial of public right on the basis of the evidence tendered by the objector and will not take into account the evidence given in rebuttal by the complainant. The case will be sent to the file of another Magistrate for disposal.