JUDGMENT : A. Misra, J. - This is a revision filed by the 2nd party against a final order u/s 33, Code of Criminal Procedure passed by the Sub-Divisional Magistrate, Gunupur directing them to remove obstructions on the mouth of the sub-channel known as "Pilamasani Batia". On the application of the opp. party, proceedings u/s 133, Code of Criminal Procedure were started in M.C. No. 37 of 1964 and the usual notice was served on the Plaintiffs. Plaintiffs in response to the said notice entered appearance and put in a counter denying the existence of the public channel or creation of any obstruction by them. After receipt of the counter, the learned Sub-Divisional Magistrate passed an order on 11-12-1964 for holding an enquiry u/s 139-A, Code of Criminal Procedure. The said S.D.M. was transferred. His successor without complying with the requirements of Section 139-A, Code of Criminal Procedure, proceeded to pass the summary order presumably u/s 137, Code of Criminal Procedure, after examining the Tahsildar of Bisam cuttack and exhibiting the record in Misc. Case No. 9 of 1904 making the conditional order dated 7.8.1964 absolute. This order is challenged mainly on two grounds. Firstly, it is contended that the procedure adopted by the learned Magistrate before passing the final order is patently illegal, and secondly, even assuming that the learned Magistrate passed the order u/s 137, Code of Criminal Procedure, he has failed to take evidence as in a summons case according to the procedure laid down in Chapter XX of the Code. 2. It is well settled that in a case which comes within the purview of Section 139-A, Code of Criminal Procedure, it is obligatory on the Magistrate first to hold an enquiry as laid down therein before he proceeds u/s 137, Code of Criminal Procedure. Section 139-A, Code of Criminal Procedure contemplates: (1) the party against whom the preliminary order has been made is to appear before the Magistrate and deny the existence of the public right in question and, (2) produce some reliable and legal evidence in support of this denial. If these conditions are satisfied the Magistrate's jurisdiction to continue the proceeding comes to an end and he has to stay the proceeding until the matter of the existence of such right has been decided by a competent civil Court. If these conditions are satisfied the Magistrate's jurisdiction to continue the proceeding comes to an end and he has to stay the proceeding until the matter of the existence of such right has been decided by a competent civil Court. On the other hand, if he finds that there is no such evidence, he is entitled to proceed as laid down u/s 137, Code of Criminal Procedure. 3. In the present case, it is conceded by Mr. Rao, learned Counsel for opp. party that the learned Magistrate has failed to follow the procedure laid down in Section 139-A, Code of Criminal Procedure. Performable, he has purported to bold the enquiry u/s 137, Code of Criminal Procedure and make the order absolute. In short, a confusion seems to have been committed by the learned Magistrate, in as much as, he has failed to bear in mind that after passing the preliminary order u/s 133, Code of Criminal Procedure, in matters coming within the purview of Section 139-A, Code of Criminal Procedure, it is obligatory on him to have two enquiries, one u/s 139-A, Code of Criminal Procedure, and thereafter, in certain contingencies, proceed with the enquiry u/s 137, Code of Criminal Procedure. On the other band, he has purported to proceed with the enquiry ignoring the requirements of Section 139-A, Code of Criminal Procedure and pass the final order. Such an order, it is not disputed, is contrary to law and cannot be sustained. In view of this infirmity, it is not necessary to go into the other ground on which the impugned order is challenged. 4. For the aforementioned reasons, I allow the revision, set aside the final order of the learned Magistrate dated 5-5-1967, restore the proceeding to the stage at which it was on 11-12-1964 when an order was passed to hold an enquiry u/s 139-A, Code of Criminal Procedure and direct the Magistrate to proceed with the case and dispose it of according to law. As the matter is pending for a long time, further proceedings should be expedited. Final Result : Allowed