ORDER O.P. Trivedi, J. - This criminal reference has been made by the Sessions Judge, Hardoi. It appears that an application u/s 133 of the Criminal P.C., was moved by Tejpal before the Sub-Divisional Magistrate, Hardoi with the allegation that the opposite parties had constructed a wall unlawfully en a public way and the same was causing nuisance. The Magistrate thereupon issued a conditional show-cause notice to the opposite parties under Sub-section (l) of Section 133 of the Criminal P.C. The opposite parties appeared before the Magistrate and denied that the land in dispute was a public way. The Magistrate then proceeded with an enquiry u/s 139A of the Criminal P.C. and on the basis of the evidence produced by the opposite parties in support of the denial came to the conclusion that the disputed land was not a public way and dropped the proceedings. Against that order a revision was filed by Tejpal which was heard by the Sessions Judge, Hardoi. The Sessions Judge held that once the Magistrate has found that there is reliable evidence in support of the denial the proper procedure for him to adopt as prescribed under Sub-section (2) of Section 139A of the Criminal P.C., was to stay the proceedings until the matter of the existence of such light; was decided by a competent Civil Court and not to drop the proceedings. He bas therefore recommended that the order passed by the Magistrate should be set aside and he should be directed to stay the proceedings. 2. I have heard the .learned Counsel for the parties and I am of the opinion that the view taken by the Sessions Judge is correct. Having regard to the wordings of sub-section (2) of Section 139A of the Criminal P.C., when the existence of right of way was disputed or denied by the opposite parties all that the Magistrate was required to determine wag whether there is , 'any reliable evidence in support of such denial' In other world, the duty of the Magistrate in the-enquiry u/s 139A is to determine whether the denial of the right by the opposite parties was frivolous and unfounded or whether there was a prima facie case in support of the denial. If be Came to the. conclusion that the denial was frivolous and unfounded the' could proceed with an enquiry as laid down Section 137 of the Criminal P 0. If be Came to the. conclusion that the denial was frivolous and unfounded the' could proceed with an enquiry as laid down Section 137 of the Criminal P 0. On the there band if he found .that there was reliable evidence in support of such denial then it was not for him to determine: whether a public way did or did not exist on the disputed land as to do so would be to usurp the function of the Civil Court. The question of title should not be deter, mined in a summary manner by a Magistrate. That properly belongs to the province of Civil Court and therefore on a finding mat there was reliable evidence in support of the denial the law requires the Magistrate to stay the proceedings until the matter about existence of the disputed right is decided by a competent Civil Court. That being the position of law, the reference is accepted. The order passed by the Magistrate dropping the proceedings is set aside and the Magistrate is directed to stay the proceedings u/s 133 of the Criminal P.C., until the matter of as existence of public right has been decided by a competent Civil Court.