R.F. Lodge, J.

1. This Rule arises out of proceedings under S. 133,Criminal P.C. and has been obtained by the second party to those proceedings.The first party asserted that there existed a public right of way over plot No.155 of Mouza Tilardi and that the second party had obstructed this right ofway, and they accordingly prayed for an order under S. 133, Criminal P.C.

2. On receipt of this petition, the learned Magistratedirected the second party to remove the obstruction and the nuisance, or toshow cause why they should not be compelled to do so.

3. On 25-6-1945, the second party filed a written statementdenying the existence of any public right of way over plot No. 155 of TilardiMouza, and the learned Magistrate directed them to produce evidence under S.139-A of the Code. The case was adjourned from time to time until on 1-4-1946,the following order was passed.

Second party denies the existence of the path and challengescorrectness of the settlement record. I think on the face of the settlementrecord this is a mere plea, so I proceed to record the evidence of second partyin accordance with S. 139-A, Criminal P.C.

4. On the same day, he examined witnesses for the secondparty and adjourned the case to 2-4-1946 and on the next day the learnedMagistrate examined one witness for the first party and adjourned the case to5-4-1946 for argument. On 5-4-1946, the learned Magistrate heard argument andadjourned the matter to 26-4-1946, for orders. On 26-4-1946, the followingorder was-passed:

Read out and delivered judgment. The order dated 8-6-1945 ismade absolute. Issue notice on the second party to remove obstruction by26-5-1946 failing which they will be prosecuted under S. 188, Penal Code.

5. On behalf of the second party, it has been argued thatthe learned Magistrate has merely held an enquiry under S. 139-A, Criminal P.C.and has not thereafter proceeded under S. 137 or under S. 138 of that Code andconsequently he was not entitled to pass final orders in the matter.

6. On behalf of the Crown it has been argued that in fact thelearned Magistrate has proceeded under S. 137, and he has done substantialjustice in this case and consequently this Court should not interfere.

7. In my opinion, the argument of the second party is wellfounded. It is perfectly clear from the orders to which I have referred above,that the learned Magistrate was calling upon the parties to adduce evidencemerely for the purpose of enquiry under S. 139-A. He did not give the result ofsuch enquiry before passing final orders in the case, and therefore did notallow the second party an opportunity of deciding whether they would apply fora jury or would have evidence recorded by the learned Magistrate.

8. The Code makes it perfectly clear that after holding anenquiry under S. 139-A and after holding that there is no evidence in supportof the denial of the existence of a public right, the Magistrate shall proceedunder S. 137 or S. 138 of the Code. He is not entitled merely as a result ofthe enquiry under S. 139-A to pass final orders in the case.

9. This Rule must be made absolute. The case must beremanded to the lower Court. The order of the learned Magistrate will be takento be an order under S. 139-A(2), Criminal P.C. holding that there was noevidence in support of the denial, and the learned Magistrate will then proceedeither under S. 137 or under S. 138 of the Code according as the second partydoes or does not apply for the appointment of the Jury. The Rule is madeabsolute accordingly.

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Lal Behari De and Ors. vs. Jatindra Chandra De (06.02.1947 -CALHC)