1. The conviction and sentence must be set aside in this case. In the first place, the only summons on the record to the accused, purports to be a witness summons and the accused now objects that he was not even aware that he was placed in the position of an accused. In the next place it appears from the report of the Chief Constable, that what information was obtained on investigation showed that the accused had done no more than build on the land purchased by him from the complainant as a building site: and, so far as the complainant was concerned, the claim for passage to that land, if made, could amount to no more than such private right of way as is specially exempted from the operation of Section 341 by the exception to Section 339, Indian Penal Code, defining wrongful restraint. The accused throughout set up a private title to the land, negativing the suggestion that the land was a public thoroughfare-a point on which the Magistrate seems to have made no enquiry.
2. We think that in this case, the proper procedure would have been, for the Magistrate to determine, whether the case was one falling within his power to act under Section 133, Criminal Procedure Code, which procedure confers on the persons called on to submit to it, the right to claim a jury and generally provides for the ascertainment of right as well as for the actual removal of the obstruction. This procedure providing for the removal of a material obstruction to a public thoroughfare, seems to us more fitting in such a case than Section 339, Indian Penal Code, which relates to the voluntary obstruction by a person and not obviously at least to obstructions which are not voluntarily continued by the persons accused of the obstruction throughout the time the obstruction lasts.
3. In any case we think that the conviction, where the accused claims, not only under colour of title, but produces a title deed and professes to claim by virtue of a decree of the Civil Courts and the order of a Mamlatdar, should not have been recorded without any enquiry even into the good faith of those claims if not into their validity, specially when the Chief Constable had already reported that the dispute was as to title and that the title of the accused purported to be conferred under a document obtained from the complainant himself.
4. We get aside the conviction and sentence and direct the fine, if paid, be refunded.