JUDGEMENT 1. The applicant has come forward with a prayer to quash the proceedings in Case No. 1 of 1979, Siya Ram and others v. Ravi Shanker, under Sec. 133, Cr. P. C. pending in the Court of Sub-Divisional Magistrate, Orai. 2. It would appear that proceedings were initiated on the application of opposite parties 1 to 4, maintaining that the land involved is a drain and the applicant has obstructed the same. The applicant filed a written statement. That written statement has been annexed with the counter-affidavit. In para 15 of the affidavit, filed in support of the application, it was alleged that the Magistrate without having any resort to procedure contemplated under Sec.137, Cr. P. C., started enquiry under Sec.138, Cr. P. C. In reply to the same, as per pars 16 of the counter-affidavit, it was stated that since there was no denial of existence of public right by the applicant, the learned Magistrate was right and justified in straightway proceeding under Sec. 138, Cr. P. C., ignoring the procedure laid down under Sec. 137, Cr. P. C. Thus, it is a common ground that the procedure laid down under Sec. 137, Cr. P. C. has been bye-passed and the Magistrate has straightway proceeded under Sec. 138, Cr. P. C. 3. It is submitted that S.137, Criminal Procedure Code is not attracted, as actually there is no denial of public right. In that connection the perusal of para 10 of the written statement before the Magistrate annexed herewith the counter-affidavit is important. It has been expressly stated therein that the disputed land ceased to be the property of Gaon Sabha from 25-1-1978 and it is the personal property of the present applicant. This clearly amounts to an assertion that the land is not a public land and that it is the land of the applicant. The pled may have substance or may be totally frivolous and without substance. But once such a plea has been raised, the provision of Sec.137, Criminal Procedure Code is attracted. It is, of course, open to the Magistrate not to stay the proceedings holding that there is no reliable evidence in support of such denial. But that is a matter which concerns the Magistrate. This court will not enter into the bona fide or otherwise of the claim. It is, of course, open to the Magistrate not to stay the proceedings holding that there is no reliable evidence in support of such denial. But that is a matter which concerns the Magistrate. This court will not enter into the bona fide or otherwise of the claim. It has to simply consider whether there is a denial and so far as that aspect is concerned. I hold that a denial has been made as to attract S.137, Criminal Procedure Code. 4. It was next urged that in any case the matter is a mere technicality and this Court would not interfere. Reliance in support of such argument was placed by the learned counsel for the opposite parties upon the case of Rasamayee v. Nakul, 1972 Cri LJ 936 (Assam and Nagaland). I fell that actually if that view is adopted, it would nullify the provision of S.137, Criminal Procedure Code. The Court cannot question the wisdom of legislature, when any provision has expressly been laid down also providing for stay of proceedings and inviting decisions by Civil Court in certain situation, such procedure has got to be followed. Similar view was taken in the case of S.P. Trivedi v. State of U. P. (AIR 1954 All 203) : (1954 Cri LJ 432) concerning old Sec.139-A, Cr. P. C. corresponding to present Sec.137, Cr. P. C. Reliance was also placed by the Counsel for the opposite parties upon the case of Bansidhar Marwari v. P. W. D., Bihar (AIR 1943 Pat 3) : (1942-43 Cri LJ 923) relying upon the earlier Patna view. In that case there was an omission upon the part of the Magistrate to put a question under Sec. 139-A, old Cr. P. C., while in the position, the Magistrate must observe the procedure laid down under Sec. 137 (2), Cr. P. C. instead of by passing it and proceeding under Sec. 138, Cr. P. C. straightway. 5. In the result, the application is partly allowed and the proceeding under Sec. 138, Cr. P. C. is quashed and it is directed that the Magistrate must have a resort to Sec. 137, Cr. P. C. first as to record an order under Sec. 137 (2), Cr. P. C., and only then, it he finds that there is no reliable evidence in support, he can proceed under S.138, Cr. P. C. is quashed and it is directed that the Magistrate must have a resort to Sec. 137, Cr. P. C. first as to record an order under Sec. 137 (2), Cr. P. C., and only then, it he finds that there is no reliable evidence in support, he can proceed under S.138, Cr. P. C. Obviously, it is for the Magistrate to examine the evidence for his view under Sec. 137 (2), Cr. P. C. The prayer for quashing the entire proceeding is however rejected Revision partly allowed.