Narayana Pillai, J.- This matter has come up before us with an order of reference passed by our learned brother Mr. Justice Raghavan. That order reads as follows: "The Executive First Class Magistrate, Trivandrum started proceedings under section 133 of the Code of Criminal Procedure. Notice of the preliminary order agiven to the petitioners; and they filed their objections before the Magistrate. However, they did not produce evidence in support of their objections, which they were bound to do under section 139-A of the Code. Then, the Magistrate confirmed the preliminary order without taking evidence. In revision the said order is being challenged. The Counsel of the petitioners draws my attention to the decision of this Court in Ambi v. State of Kerala1, by Anna Chandy, J., laying down that under section 137 ‘the conditional order cannot be made absolute without the party (complainant) being called upon to substantiate the allegation, which necessitated the passing of the conditional order by producing legal evidence.‘I am inclined to agree with this. The Counsel of the first respondent, the petitioner before the Executive First Class Magistrate, draws my attention to another decision of this Court by Madhavan Nair, J., in Balan v. State of Kerala2. The head-note of the case reads: Section 137 contemplates proof not of reasonableness and propriety of the conditional order passed but of its unreasonableness and impropriety. If evidence therefor is not forthcoming the section requires the Magistrate to make the conditional order absolute. In other words it is for the person against whom a conditional order has been made to convince the Magistrate, that the conditional cider was not reasonable or proper in the facts and circumstances of the case, and not for the other party to lead evidence to satisfy the Magistrate that his conditional order was reasonable and proper.“ These two decisions by two learned Judges of this Court appear to conflict, one taking the view that in any enquiry under section 137, the complainant must adduce evidence and the other taking the view that in such a proceeding, the respondent should produce evidence against the preliminary order and the complainant need produce evidence only to rebut. Because of this conflict, I place this case before a Division Bench for an authoritative decision dissolving the tie.” This revision raises the question whether even without calling on the party at whose instance a conditional order was passed under section 133 of the Criminal Procedure Code to let in evidence to substantiate his allegations that order can be made absolute as soon as the person against whom the order was passed defaults to let in evidence to substantiate his objections. Our learned brother Mr. Justice Madhavan Nair in Balan v. State of Kerala2, held that it could be done. In Ambi v. State of Kerala1, Anna Chandy, J., took the opposite view and that gains support from the decision in Sankaran v. Kunjukrishnan3, Thomas Varkey v. Idiculla John4, In re, Ramsing5 Lal Behari v. Jatindra Chandra6, Rameshwar v. Emperor7, Attar Singh v. Hari Singh8 Jagan Nath Prasad v. Emperor9, Akhoy Sardar v. Lalchand Sardar10 and Srinath Roy v. Ainaddi Haider11. Madhavan Nair, J., relied upon the language of section 137 (2) and (3) to reach his conclusion. Those clauses in section 137 speak of the Magistrate’s obligation to stop all further proceedings if he is satisfied that the conditional order is not reasonable and proper and to make that order absolute ii he is not so satisfied. Prima facie it would appear from it that once the conditional order is passed the burden is on the person against whom that order was directed to show that it was not reasonable and proper and that if he does not adduce evidence to substantiate it that order has to be made absolute. In that view the observation in Balan v. State of Kerala2, that after the conditional order was passed the satisfaction required on the fart of the Magistrate was of the unreasonableness and impropriety of the order and the conclusion that in the absence of evidence on the side of the party against whom the order was passed the order could be made absolute without taking the evidence of the party at whose instance that order was passed, if we may respectfully say so, may be quite justified. But those provisions in section 137 do not stand isolated. But those provisions in section 137 do not stand isolated. They have to be read along with the remaining provisions in the same section and the provisions in the remaining sections which deal with Public Nuisances and if so read it is clear that even after the party against whom the conditional order was passed defaulted to let in evidence to substantiate his objections that order could not be made absolute without taking the evidence of the other party at whose instance the proceedings were started. Let us now examine the relevant provisions in the Criminal Procedure Code. It is Chapter X containing sections 133 to 143 that deals with Public Nuisances. Sections 140 to 143 are not relevant for the present purpose because they deal with the execution of the final order, issue of injunction pending inquiry and similar matters. Section 133 provides for Magistrates passing conditional orders on receiving a police report or other information and on taking such evidence, ifany, they think fit. That section also provides that in the conditional order the Magistrate shall require the person causing the nuisance to appear before him or some other competent Magistrate to move to have the conditional order vacated or modified in one or the other of the modes provided for in the succeeding sections, Sections 134 to 139-A deal with the steps to be taken after the stage of the passing of the conditional order. At the conclusion of the inquiry 3 alternatives are given to the Magistrate. He can either stay the proceedings under section 139-A (2) until the matter has been decided by a competent civil Court or drop all further proceedings under section 137 (2) or make the conditional order absolute under section 137 (3). Section 134 says how service is to be made of the conditional order on the person against whom it was passed. After the order is served on the person against whom it was passed he can, if he has no objections to the order, comply with it If he has objections he has either to appear before the Magistrate and show cause against the order or apply to him to appoint a jury to try whether the passing of the order was reasonable and proper. Sections 138 and 139 deal with the procedure relating to the appointment and verdict of the jury. Sections 138 and 139 deal with the procedure relating to the appointment and verdict of the jury. If the person against whom the conditional order was passed neither complies with the order nor appears and shows cause nor applies for appointment of jury penalty is provided for in section 136. If he appears before the Magistrate it is obligatory on the part of the Magistrate under section 139-A (1) to question him to ascertain whether he denies the existence of a public right in the way, river, channel or place for which the conditional order was passed. If he denies the existence of any such right, the Magistrate has to inquire into the matter under section 139-A (1). The first thing that he has to do in that inquiry is to find out whether there is reliable evidence in support of the denial of the public right. If there is such evidence he should under section 139-A (2) await the decision of acompetent civil Court and stay all further proceedings. If the person against whom the conditional order was passed, on being questioned by the Magistrate fails to deny the existence of the public right or after making such denial fails to adduce reliable evidence in support of such denial he would not in the subsequent proceedings be permitted to make denial of any such public right. The existence of such public right would not in that case be allowed to be inquired into by the jury also appointed on his application. They are the only penalties provided for in section 139-A (3) for failure to deny the existence of a public right after appearance before the Magistrate or having made such denial to adduce reliable evidence in support thereof. Those provisions do not authorise the Magistrate to make the conditional order absolute if the person against whom that order was passed fails to substantiate his denial of the public right. It is after the inquiry contemplated by sections 139-A (1) and (2) about the substantiation of the denial of the public right by the person against whom the conditional order was made that the stage of inquiry contemplated by section 137 starts. That is clear from the words “the Magistrate shall, before proceeding under section 137 or 138, inquire into the matter” appearing in section 139-A (1). This is how sections 137 and 139-A read: “137. That is clear from the words “the Magistrate shall, before proceeding under section 137 or 138, inquire into the matter” appearing in section 139-A (1). This is how sections 137 and 139-A read: “137. (1) If he appears and shows cause against the order the Magistrate shall take evidence in the matter as in a summons case. (2) If the Magistrate is satisfied that the order is not reasonable and proper, no further proceedings shall be taken in the case. (3) If the Magistrate is not so satisfied, the order shall be made absolute. 139-A. (1) Where an order is made under section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of anyway, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under section 137 or section 138, inquire into the matter. (2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent civil Court; and, if he finds that there is no such evidence, he shall proceed as laiddown in section 137 or section 138, as the case may require. (3) A person who has, on being questioned by the Magistrate under subsection (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial, nor shall any question in respect of the existence of any such public right be inquired into by any jury appointed under section 138.” Under section 137 (1) if the person against whom the conditional order was passed appears and shows cause against the order the Magistrate has to take evidence as in a summons case. Sub-sections (2) and (3) of section 137 authorise the Magistrate either to drop all further procedings in the inquiry or make the conditional order absolute. Sub-sections (2) and (3) of section 137 authorise the Magistrate either to drop all further procedings in the inquiry or make the conditional order absolute. They also give directions as to when the Magistrate can do so. He can drop all further proceedings if he is satisfied that the conditional order is not reasonable or proper. In other cases he can make the order absolute. A combined reading of sections 137 and 139-A shows that there are 2 distinct stages in the inquiry contemplated by those sections, the first being that under section 139-A (2) and the second that under section 137. Entering on the 2nd stage arises only if the party against whom the conditional order was passed defaults to adduce reliable evidence in support of his denial of the existence of a public right. In the scheme of the inquiry the proper place for the provisions in section 137 is after section 139-A. Its present place above section 139-A has been partly responsible for the confusion it has created. Now we go straight to the question whether a Magistrate who makes a conditional order absolute under section 137 (3) can do so without taking the evidence of the party at whose instance he passed the conditional order. We are of the opinion that it cannot be done. That is firstly because there is scope for the application of section 137 (2) and (3) only after the conclusion of the inquiry contemplated by section 137 (1) and the provision in section 137 (1) that in an inquiry under it evidence should be taken as in a summons case indicates that the Magistrate has to take the evidence of the party at whose instance the conditional order was passed before the disposal of the case. Section 244 which comes in Chapter XX dealing with the trial of summons cases says that the Magistrate should hear the complainant, if any, and take all such evidence as may be produced in support of the prosecution and thereafter take the evidence adduced by the accused. The words “evidence in the matter” employed in section 137 (1) mean evidence of the complainant. The words “evidence in the matter” employed in section 137 (1) mean evidence of the complainant. Secondly, at the beginning of the stage of the inquiry under section 137 (1) the only material before the Magistrate in support of the conditional order he passed is the information or ex parte statements he received under section 133 (1) and they cannot take the place of legal evidence for passing a final order. And thirdly, if even without taking the evidence of the party at whose instance the conditional order was passed that order is to be made absolute on the default to let in evidence of the party against whom it was passed it works out as a penalty for his default and such a penalty is not provided for in section 139-A (3) which deals with penalties for defaults in such cases. We therefore, respectfully agree with the statement of the law on the subject in Ambi v. State of Kerala1, and disagree with that in Balan v. State of Kerala2. In the result, we allow this revision petition and set aside the final order of the Executive First Class Magistrate, Trivandrum, which was confirmed in revision by the Sessions Judge, Trivandrum. The matter is remitted to the Executive First Glass Magistrate for proceeding afresh in the light of the observations made above. M.C.M. ----- Revision allowed; matter remitted.