Asutosh Mookerjee, Acting C.J.

1. This Rule arises out of a proceeding taken under Section133 of the Code of Criminal Procedure. The person "upon whom theconditional notice under that section was made appeared to show cause and atthe same time claimed the appointment of a Jury. The Magistrate forthwithproceeded to appoint a Jury, The Jury thus appointed submitted three reports;three of the Jurors by two separate reports signed by two and one respectivelyexpressed the opinion that the way in question was not a public way, while theother two were of opinion that and the way in question was a public way andthat the conditional order of the Magistrate should be made absolute. TheMagistrate for certain reasons, into which we need not enter, refused to acceptthe verdict or opinion of the majority of the Jury, and transferred the case toanother Magistrate in order that it should be dealt with in the manner providedin Section 137 of the Code. The Magistrate some to the conclusion that the wayin question was a public way and that the conditional order made was reasonableand proper. He, therefore, made that order absolute. He does not, as a math offast, find whether the claim put forward by the person required to show causewas not a claim put forward in good faith. In a large number of cases decidedby this Court, it has been held that, before a Magistrate proceeds to the appointmentof a Jury, be must, when those questions are raised, first of all decide onevidence whether the way in question is or is not a public way and whether theclaim to the contrary put forward by the person showing cause is or is not aclaim put forward in good faith. If he comes to the conclusion that the way inquestion is a public way and that the claim put forward by the person requiredto show cause is merely a pretext to oust the Magistrates jurisdiction, he maythen proceed to appoint a Jury if the person required to show cause stilldesires the appointment of a Jury in order that such Jury may determine whetherthe conditional order made is reasonable and proper. We are bound by thesedecisions and must, therefore, hold that the proceedings in the present casehave been irregular. We, therefore, set aside the order complained of and allorders made in these proceedings on and after the 29th July 1920, and directthat the Magistrate do proceed afresh in the manner indicated in the foregoingjudgment.

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Satish Chandra Mitravs. Emperor on the Complaint of Manmotha Nath Mitra (20.08.1920 - CALHC)