3. It appears that the opposite party nos.4 and 5 had filed the aforesaid Criminal Misc.
Case under Section 133 of Cr.P.C. before the Sub-Divisional Magistrate, Jajpur with a prayer t
o remove the obstruction from the public way in question. In the said proceeding, it was alleg
ed that the public nuisance to have been caused by the petitioner obstructing the way of the o
pposite party nos.4 and 5 which the opposite party nos.4 and 5 used to approach the public roa
d. On such petition, notice was issued to the petitioner by the SDM, Jajpur and pursuant to th
e said notice, the petitioner appeared before the SDM, Jajpur and filed the documents and show
cause denying the allegations made by the opposite party nos.4 and 5. After filing of the sho
w-cause and documents though the case was adjourned from time to time, but without making any
enquiry the learned SDM, Jajpur examined one witness of the opposite party nos.4 and 5 without
affording any opportunity to the present petitioner who was opposite party in the 133 Cr.P.C.
proceeding and posted the case to another date and thereafter the impugned order was passed.
4. Since in this case, the obstruction and public nuisance said to have been denied in th
e show-cause by the petitioner, then it was incumbent on the part of the SDM, Jajpur to make a
n inquiry and in such inquiry, if he finds reliable evidence in respect of such denial, he is
required to stay the proceeding and direct the matter to be decided by the competent court. Bu
t, in such inquiry, if he finds the denial is without any substance, he is required to make an
inquiry as contemplated under Section 138 of Cr.P.C. and in such enquiry, if the Magistrate i
s satisfied that the order, either as originally made or subject to such modification as he co
nsiders necessary, is reasonable and proper, the order shall be made absolute without modifica
tion or, as the case may be, with such modification or if not so satisfied, the proceeding sha
ll be dropped.
