Judgment ( 1. ) THIS is a petition, under Section 482 of the Code of Criminal procedure (for short "the Code"), for quashing the proceedings under section 133 of the Code, initiated upon the complaint made by the respondents no. 1 and 2, to this effect that by encroaching upon a public way, he had created public nuisance. The subject matter of alleged public nuisance is the construction made on the disputed land situated on Bhopal-Sagar Road in Begumganj. The background facts, as projected by the petitioner, may be summarized as under: (a) After obtaining necessary building permission from the respondent no. 3-Municipality, he started raising construction of a house on the land purchased by his father through sale deeds dated 16/7/1955 and 20/6/1958. However, In the light of Patwari report suggesting that he was constructing house, by encroaching upon 10 x 16 sq. feet area of the Govt. land bearing Khasra No. 799/1, proceedings to remove the alleged encroachment were initiated under oral order of the Collector. He, therefore, filed a civil suit for permanent injunction. (b) In that suit, registered as Civil Suit No. 85a/2004, in the court of Civil Judge Class I, Begamgunj, District Raisen, his application for grant of temporary injunction against the defendant was allowed vide order dated 7/2/2004. Accordingly, the defendant/state, was restrained from demolishing the construction upon an undertaking furnished by the plaintiff viz. the petitioner that he would demolish the construction in case, it is found to be made on part of the Government land. But despite this injunction, the sub Divisional Magistrate, on 14/5/2004, passed a conditional order directing removal of the construction in the light of allegations made by respondents nos. 1 and 2 in their application under section 133 of the Code that he had obstructed the public passage by constructing a room on 15x16 sq. feet portion of the Nazul land bearing Khasra No. 799/1, and to show-cause as to why the order should not be made absolute. (c) In reply, while specifically denying existence of any public way on the land-in-dispute, he raised preliminary objection as to maintainability of the proceedings in view of the temporary injunction passed against the State by competent Civil Court. Further, respondent no. 3municipality, begamganj, District Raisen, also supported his case that the land was not a part of public way but was possessed by him exclusively as owner thereof. Further, respondent no. 3municipality, begamganj, District Raisen, also supported his case that the land was not a part of public way but was possessed by him exclusively as owner thereof. (d) However, on 28/5/2007, the Magistrate passed the final order whereby the direction for removal of construction made by him was made absolute. Being aggrieved he filed a criminal revision, that was allowed by the third Additional Sessions Judge, Begumganj, vide order dated 29/6/2007. Accordingly, the matter has been remanded for a fresh decision on merits in the light of evidence to be recorded under Section 138 of the code. At the outset, learned counsel for the petitioner has strenuously contended that the proceedings under S. 133 could not be initiated as the dispute is already in seisin of Civil Court, that had also granted temporary injunction in his favour. However, it is not possible to lay down a broad proposition that once there is a civil litigation, the proceedings under S. 133 of the Code cannot be initiated. Further, by virtue of sub-section (2), the order, if duly made by the Magistrate, cannot be called in question in any civil Court. Moreover, no declaratory relief as to ownership has been sought by the petitioner in the Civil Suit. This apart, subsection (2) of S. 137 lays down that the Magistrate has no option but to stay the proceedings in case reliable evidence as to non existence of any public right is adduced before him. (Kailash Narain Vs. State of M. P. (1992 MPWN 29), referred to ). ( 2. ) ACCORDINGLY, the learned Additional District Judge, fell into an error by directing an inquiry under Section 138 of the Code, despite the fact that in the light of the preliminary objection, as to the existence of public way on the disputed land, the Magistrate was required to make an inquiry under section 137 (1) of the Code before proceeding under Section 138 of the code. ( 3. ) IN the result, the prayer for quashing the proceedings is hereby rejected. ( 3. ) IN the result, the prayer for quashing the proceedings is hereby rejected. However, the revisional order is modified and the Magistrate is directed to first make an enquiry as contemplated under Section 137 (1) of the Code and in such inquiry, if he finds that there is any reliable evidence in support of denial of the existence of public way on the disputed land, he shall stay the proceedings until the matter of existence of such right is decided by the Civil Court, and if he finds that there is no such evidence, he shall proceed in accordance with Section 138 of the Code. The petition, is, accordingly, disposed of.