JUDGMENT Hon’ble Ram Autar Singh, J.—This revision has been directed against the judgment and order dated 7.1.2003 passed by Additional Sessions Judge, Fast Track, Court No. 1, Moradabad in Criminal Revision No. 183 of 2002 (Holi Committee and others v. State of U.P. and others), whereby the revision has been allowed and order dated 26.6.2002 passed by the District Magistrate, Moradabad in Case No. 428 of 2002 (Holi Committee v. Smt. Rani Devi) has been set aside. 2. I have heard Shri T.A. Khan, learned counsel for the revisionist, learned A.G.A. for respondent No. 1 and Shri R.B. Trivedi, learned counsel for respondent No. 2 on this revision and perused the record. 3. It transpires from the record that respondent No. 2 Holi Committee, Mohalla Paith Etwar, Sarai Tarin, Sambhal, District Moradabad, moved an application to District Magistrate, Moradabad on 8.9.2000 with prayer to direct the police of P.S. Hayat Nagar to restrain the revisionist from raising construction over the public property as detailed in the application. It was alleged that the land in dispute had always been used for celebration of Holi Dahan, Janamasthmi and Ram Naumi and thus it was public land in respect of which Case No. 77/11 of 1974 (Shyam Saran v. Shalar Jahan Begum) was instituted in the Court of Sub-Divisional Magistrate, Sambhal, on the basis of police report dated 24.3.1967, in which an order dated 7.8.1975 was passed under section 145 Cr.P.C. The opposite party Smt. Rani Devi tried to raise illegal construction over the same on 28.8.2000 which was stopped by the then District Magistrate, Smt. Rani Devi produced the sale deed dated 25.5.2000 executed by Hafiz Fariduddin on the basis of which the Additional District Magistrate, Sambhal allowed her to raise construction over part of disputed land, against which Civil Misc. Writ Petition No. 46189 of 2000 was instituted in this Court for removal of nuisance from public land. 4. The Sub-Divisional Magistrate, Sambhal on the basis of complaint called for the report and after having heard both the parties directed the parties to maintain status quo. Writ Petition No. 46189 of 2000 was instituted in this Court for removal of nuisance from public land. 4. The Sub-Divisional Magistrate, Sambhal on the basis of complaint called for the report and after having heard both the parties directed the parties to maintain status quo. A report was also called for from Consolidation Officer, Sambhal, who submitted his report to this effect that the land in dispute was being used as ghas mandi and in the north of the same some pucca shops, chabutra and nala were constructed and the shops in dispute were ownership of Smt. Rani Devi and in the east of said land Smt. Rani Devi got the shops constructed after getting a map sanctioned by the prescribed authority. 5. The Sub-Divisional Magistrate, Sambhal submitted his report to this effect that Pushpendra Kumar also moved an application, on the basis of which a report was called for from Tehsildar, who submitted his report dated 14.7.2000, in which it was alleged that the properties including disputed property shown by red colour in the map was proclaimed for auction by the Sub-Divisional Magistrate/Liquidation Officer, Sambhal in the year 1975-76 and thereafter the auction took place on 27.1.1984 in respect of entire land including the disputed land and a sale certificate was issued in favour of Hafiz Fariduddin, who became owner and in possession of the same. 6. The District Magistrate received a complaint that Hafiz Fariduddin had got no right to sell the disputed land, but he executed a sale deed in favour of Smt. Rani Devi on 29.5.2000 in respect of the disputed property and thus she entered into possession of the same and the disputed land sold to her was never used for celebration of holi festival as well as the land in southern side of disputed land was purchased by Fariduddin in auction through sale certificate, which was being used as ghas mandi and Faridudin used to recover cess from the persons, who used his land for the said purpose, but Fariduddin became owner of the disputed land after purchase in auction and he sold the disputed land to Smt. Rani Devi on 29.5.2000 and thereafter the said land was never used for celebration of holi. 7. 7. The District Magistrate on the basis of the evidence produced before him found that the disputed property involved in case 77/11 did not exist in north of nala but it existed in the south of pucca nala and Smt. Rani Devi raised construction of six shops in the land purchased by her and thus the complaint/application was not maintainable under section 133 Cr.P.C. and the application moved by Pushpendra Kumar was dismissed by the District Magistrate vide order dated 26.6.2002. 8. Aggrieved by said order, the Holi Committee and Pushpendra Kumar preferred Criminal Revision No. 183 of 2002 against State of U.P. and Smt. Rani Devi in the Court of Sessions Judge, Moradabad, which was decided by the Additional Sessions Judge, Fast Track Court No. 1, Moradabad. The revision was thus allowed and order dated 26.6.2000 passed by the District Magistrate was set aside and the case was remanded back to the Court below to decide afresh in the light of observations made in the judgment. The learned revisional Court held that the District Magistrate should have passed the order in compliance of section 137 Cr.P.C. but he set aside the proceedings under section 133 Cr.P.C. Thus the District Magistrate did not comply with the legal provisions in passing the impugned order. The revisionist Smt. Rani Devi, aggrieved by the said order passed by the revisional Court, preferred this revision before this Court. 9. The learned counsel for the revisionist contended that the revisional Court committed legal error in reversing the findings recorded by the District Magistrate, because the proceedings were initiated on a complaint made by respondent Nos. 2 and 3 in pursuance of the order dated 8.11.2000 passed by this Court. The District Magistrate, Moradabad had got the power to decide issues finally and he categorically recorded the findings that the revisionist had not encroached upon the public land, the question of causing nuisance did not arise but the revisional Court committed manifest error of law in reversing the findings of the District Magistrate. 10. The learned counsel for the revisionist further contended that the revisional Court failed to consider this aspect that the revisionist had purchased the land through sale deed and after getting the map sanctioned by the competent authority constructed the shops over her land and she did not encroach upon any public land. 10. The learned counsel for the revisionist further contended that the revisional Court failed to consider this aspect that the revisionist had purchased the land through sale deed and after getting the map sanctioned by the competent authority constructed the shops over her land and she did not encroach upon any public land. The District Magistrate after receiving the evidence and ascertaining the fact through the consolidation officer and Tehsildar, Sambhal categorically recorded the findings of fact that no encroachment was made by the revisionist over the public land and thus the revisional Court committed error in interpreting the legal provisions of sections 133, 137 and 138 Cr.P.C. and the entire proceedings initiated were mala fide. The respondent No. 2 did not want that any person should construct his house or shop in front of his own house and due to this reason he moved the said complaint and the District Magistrate recorded the findings of fact that the shops of revisionist were existing in north of the nala, boundaries of which was given in the notice dated 25.3.1967 but the revisional Court recorded such findings without any cogent evidence on record. 11. It is further submitted that the revisional Court failed to consider this aspect of the matter that initially the complaint was made in representative capacity through six persons, against one Haji Fariduddin and Ram Kishan alongwith the revisionist but the revision was preferred by respondent Nos. 2 and 3, whereas the respondent No. 2 had no legal entity, because he was neither a registered society nor any working society and that for the sake of litigation this name was given. 12. I have found from the record that the land over which the revisionist raised construction, was purchased by her from Haji Fariduddin through registered sale deed and Haji Fariduddin had purchased the said land through sale certificate in auction conducted on behalf of State and thus the disputed land was not found public property and the complaint moved on behalf of respondent Nos. 2 and 3 was mala fide and against the facts of the case. 13. The District Magistrate categorically recorded the findings to this effect that the disputed land was not public land, the question of causing nuisance over the same could not arise. 2 and 3 was mala fide and against the facts of the case. 13. The District Magistrate categorically recorded the findings to this effect that the disputed land was not public land, the question of causing nuisance over the same could not arise. The learned Additional Sessions Judge in revision held that the District Magistrate should have complied with the provisions of section 137 Cr.P.C. instead of dropping the proceedings. Section 137 Cr.P.C. is reproduced below : “137. Procedure where existence of public right is denied.—(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 any way, 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 138 inquire into the matter. (2) If in such iqnuiry 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 Court; and, if he finds that there is no such evidence, he shall proceed as laid down in section 138. (3) A person who has, on being questioned by the Magistrate under sub-section (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 of thereof, shall not in the subsequent proceedings be permitted to make any such denial.” 14. (3) A person who has, on being questioned by the Magistrate under sub-section (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 of thereof, shall not in the subsequent proceedings be permitted to make any such denial.” 14. The learned District Magistrate in his judgment has held that there is reliable evidence in support of such denial of public right and in such circumstances he should have stayed the proceedings until the matter of existence of such right is decided by a competent Court and if he finds that there is no such evidence he should proceed under section 138 Cr.P.C. In the present case the revisionist denied the right of disputed land to be public property and she produced the documentary evidence in support of her claim, the District Magistrate should have stayed the proceedings until the dispute is decided by the competent Court, but the learned District Magistrate himself decided the matter and dropped the proceedings without complying with the provisions of section 137(2) Cr.P.C. and thus the learned Additional Sessions Judge rightly allowed the revision of respondent Nos. 2 and 3. The judgment and order passed by the Court below do not require any interference in view of above discussions, because the learned Magistrate must have observed the procedure laid down under section 137(2) Cr.P.C. The Magistrate must have resort to section 137 Cr.P.C. first as to record an order under section 137(2) Cr.P.C. of the Court and only then if he finds that there is no reliable evidence in support thereof, he can proceed under section 138 Cr.P.C. Obviously the District Magistrate examined the evidence in support of section 137(2) Cr.P.C. in this case. 15. In view of foregoing discussions the learned District Magistrate committed manifest error of law in setting aside the proceedings of the case under section 133 of Cr.P.C. without adopting the procedure laid down in Section 137(2) of Cr.P.C. The learned Additional Sessions Judge rightly allowed the revision and set aside the order passed by learned District Magistrate as well as remanded the case with direction to decide the same afresh in the light of observations made in the judgment found in revision, which do not require any interference in this revision. Consequently, this revision lacks merit and is dismissed. ————