The questions that fall for determination in this revision stemming from a proceeding u/s. 133 of the Criminal Procedure Code, 'the Code' for short, is whether the proceeding was inva­lid for breach of the provisions contained in Sees. 137 and 141 of 'the Code' ? If so, whether the impugned order dated 10.9.84 passed by the Sub-divisional Magistrate (Executive), North Lakhimpur in Misc. Case No. 333/84 u/s. 138 of 'the Code' is invalid, illegal and liable to be set aside ? If appropriate procedure has not been followed should the entire proceeding be quashed or it should be allowed to continue from the stage where the learned Magistrate committed the error of law ? 2. This is a proceeding u/s. 133 of 'the Code'. The appli­cants (opposite party) herein were interested to see that the general public get adequate water supply from the rivulet named "Gogola Mornoi". It appears that the rivulet is the fountain head of water supply to many villages including the applicants' village. The stream being the life blood, the opposite party could not tolerate when the petitioner, Shri Thaneswar Bora and others put obstructions impeding free flow of water, on the plea that they had started a fishery by taking loan from the Government and the obstruction put by them was to divert the water course to catch fish. 3. Mr. Phukan, learned counsel for the opposite party is. justified in submitting that on the side of the petitioner it was an assertion of 'private right' to fish for his personal gain whereas the villagers (opposite party) were fighting for life and health' of the villagers. On receipt of the complaint u/s. 133, a competent Magistrate passed a conditional order requiring the petitioners to remove the blockade set up by them. It also appears that one of the opposite party removed the obstruction. At least one amongst the party realised that his action was agai­nst "public interest”. He is Gaya Ram Gogoi. Accordingly his name was struck off from the list of second party. 4. In the instant case learned Magistrate has completely failed to comply with the provisions of Section 137(1) of "the Code" inasmuch as he did not ask the members of the oppo­site party, on their appearance before him, as to whether they denied the existence of public right in respect of the river or channel. 4. In the instant case learned Magistrate has completely failed to comply with the provisions of Section 137(1) of "the Code" inasmuch as he did not ask the members of the oppo­site party, on their appearance before him, as to whether they denied the existence of public right in respect of the river or channel. As such, the moot question that arises for considera­tion is, whether the provision of sec. 137 (1) of 'the Code' is mandatory or directory ? 5. Sections 133 to 143 of 'the Code' deal with proceedings for removal of public nuisance or unlawful obstruction from any pub­lic place or from any way, river or channel etc. It is thus seen that the Magistrate can assume jurisdiction to decide whether a party should remove any obstruction, provided the obstruction amounts to public nuisance or unlawful obstruction in any public place or way, river or channel. If a private right is affected the provisions ate not attracted nor should the Magistrate assume jurisdiction to pass a final order u/s. 138 of 'the Code'. How­ever, if public right is jeopardised or obstructed the Magistrate can proceed to hear and make a final order u/s. 138 of 'the Code'. The applicant may assert public right but that by itself is not enough. The party against whom a conditional order u/s. 133 is made for removal of the nuisance or the obstruction should be personally asked as to whether he affirms or denies the existence of any public right alleged by the first party. If the party against whom a conditional order has been made u/s. 133 of 'the Code' ad­mits the existence of such right the Magistrate can straight way pro­ceed to determine the case u/s. 138 of 'the Code' upon taking evidence. However, if the party against whom a conditional or­der has been made denies the existence of public right and thereby intends to take away the jurisdiction of the Magistrate to decide the rights of the parties, the Magistrate must hold an enquiry, and, if in such enquiry he finds that "there is relia­ble evidence in support of such denial "the Magistrate shall stay the proceeding until the matter of the existence of such public right has been determined by a competent Court. It is thus seen that only after the decision of a competent court that the applicant has public right then and then only the Magistrate can proceed to decide the case finally u/s. 138 of 'the Code' In short, if the opposite party admits the existence of public ri­ght the Magistrate may, on admission of the party, proceed u/s. 138 of 'the Code" to decide the respective rights of the parties. However, if the public right is denied the Magistrate must hold an enquiry. If he finds that there is any reliable evidence in su­pport of such denial he must stay the proceeding until the existence of public right is decided by a competent court in fa­vour of the applicants. If he finds on enquiry that the denial of the opposite party has no backing of any evidence he shall proceed u/s. 138 of the Code. As such, Parliament has laid down a set procedure directing the Magistrate to proceed in that parti­cular manner as prescribed in Sec. 137 (1) of “the Code". He must comply with the terms of the order. If the opposite party denies the existence of the public right he cannot decide the issue on merit without holding an enquiry. It is a condition precedent to exercise jurisdiction u/s. 138 of 'the Code'. For the foregoing re­asons I hold that the provisions of Sec. 137 (1) of 'the Code', which enjoin the Magistrate to put the relevant question to the party served with the conditional order u/s. 133 as to whether he denies the existence of any public right is mandatory. 6. In the instant case, learned Magistrate did not put any question to the members of the second party as to whether they denied the existence of public right claimed by the first party and skipping over the mandatory provision learned Ma­gistrate assumed jurisdiction to decide the merits of the case u/s. 138 of 'the Code'. While deciding the merits of the case u/s. 138 it may not at all be necessary for the Ma­gistrate to reconsider the question as to the existence of public right. As such, the parties are not required to add­uce any evidence on the issue when an enquiry under sec. 138 of 'the Code' is made. I am constrained to hold that in the in­stant case learned Magistrate has failed to comply with the ma­ndatory provisions of sec. As such, the parties are not required to add­uce any evidence on the issue when an enquiry under sec. 138 of 'the Code' is made. I am constrained to hold that in the in­stant case learned Magistrate has failed to comply with the ma­ndatory provisions of sec. 137 (1) of 'the Code' and assumed jurisdiction to render an order u/s. 138 which is violative of the mandatory provisions of 'the Code'. Under these circumstances when the impugned order has been made in which of the mandatory provision of sec. 137 (1) the final order rendered under sec. 138 must be set aside which I hereby do. 7. However, the proceedings prior to the non-compliance of sec. 137 were valid. As such, upon setting aside the final order I direct learned Magistrate to follow the procedure laid down in section 137 (1) of 'the Code', put the necessary question to the members of the opposite party, hold an enquiry if the existence of public right is denied and then to proceed in acc­ordance with the provisions of section 138 of 'the Code'. The conditional order passed by the learned Magistrate is sustained in view of the nature of the proceedings. Learned Magistrate shall proceed from the stage envisaged in section 137 (1) of the Code'. If occasion arises, and an order of in junction pending enquiry becomes necessary learned Magistrate may exercise the power to uphold the public interest. I direct both the parties, thro­ugh their counsel to appear before the Sub-divisional Magistrate (Executive), North Lakhimpur on 20.4.86 to take necessary or­ders from the learned Magistrate. On such appearance learned Magistrate may put the relevant question u/s. 137 (1) to the me­mbers of the opposite party, either on that date or on any other day convenient to him. Thereafter, learned Magistrate sh­all do the needful enjoined by the provisions of 'the Code'. If the members of the second party admit the existence of pu­blic right, learned Magistrate may take evidence and/or may with the consent of the parties decide the merit of the case on the basis of the evidence already adduced or be may take fresh evidence but the proceedings must be finally disposed of by May, 1986. 8. In the result the petition is accepted to the extent in­dicated above. Send down the records forthwith to the learned Sub-divisional Magistrate (Executive), North Lakhimpur.