Etraj Mandal vs Emperor

The complaint that is made in this case is that the petitioner was not afforded an opportunity of adducing evidence u/s 137, Criminal P.C. We have examined the record and it appears to us that the position was this. A conditional order was made u/s 133, Criminal P.C. The opposite party, who is represented by Mr. Chatterji, appeared before the Magistrate and denied the existence of any public right in respect of the water course in question. Thereupon the Magistrate directed him to adduce evidence in support of his case. The petitioner urges that he understood that he was to adduce evidence in support 0f his case relevant to an enquiry u/s 137-A and that not until the enquir u/s 139 A was concluded could he be expected or required to produce evidence relevant to an enquiry u/s 137. As far as the sections go, the petitoner would seem to be right in his conetention. In that view of the matter, inasmuch as no specific opportunity was given to the petitioner to adduce evidence u/s 137, Criminal P.C., the order complained of must be set aside and the matter must go back to the Magistrate for an enquiry as laid down in Ch. 10, Criminal P.C.