When the Magistrate passes conditional order against the person, he shall ask him as to whether that person denies the existence of any public path. If he denies the existence of public path, the Magistrate will hold an inquiry as contemplated by Section 137, Cr. P.C. The burden of proof lies upon the party who denies the existence of public path.
However, in such an inquiry both the parties are entitled to adduce their evidence against each other so as to enable the Court to arrive at a particular finding. The Magistrate is bound to give an opportunity to the other party to lead the evidence in rebuttal under Section 137 (2). Where the Magistrate had not given opportunity to the other party to lead evidence in rebuttal,–the order of the Magistrate was bad in law. Therefore, the Sessions Judge had rightly allowed the revision.
In Sri Ran v. State of U.P. the public nuisance was alleged to have been committed by unauthorised construction on a public path, but the person concerned denied that it was a public path. The Magistrate, without recording a finding whether denial was correct or not, passed an order under Section 133. It was held that in the absence of such finding, removal order was erroneous and therefore, liable to be set aside.
The scope of inquiry by Magistrate under this section is limited. It is solely for the purpose of finding out whether there is any necessity for a detailed inquiry under Section 138 and this is why there is no necessity for weighing evidence at this stage. The inquiry under this section is to be confined only to decide about the denial of the existence of a public right.
The provisions of this section are mandatory and therefore, non-compliance would render the orders passed as illegal.