1. This is a reference by the learned Sessions Judge, Ghazipur, recommending that an order passed by a Magistrate, first class, of that district, under Sections 133/137, Criminal P.C., be set aside. It appears that the District Board complained that Gangadhar had encroached upon a certain public way and thus obstructed the use of that way by the public. A report was called for from the Qanungo, who stated that there had been no encroachment. The Magistrate thereupon proceeded to hold an enquiry purporting to be one under Section 133, Criminal P.C. The case dragged on from 22nd August 1934 to 13th June 1935, when it was finally decided against Gangadhar, who was directed to remove the construction made by him on the land alleged to be part of the public way. Gangadhar moved the Sessions Judge in revision and contended that the procedure laid down by Section 139-A (2), Criminal P.C., had not been followed. This contention was accepted by the learned Sessions Judge, who has accordingly made a reference to this Court recommending that the Magistrate's final order be set aside and proceedings be taken afresh in accordance with law.
2. The Magistrate has submitted a lengthy explanation justifying the procedure adopted by him. I have examined the proceedings and am of opinion that the requirements of Section 139-A (2) cannot be considered to have been complied with. After the receipt of the Qanungo's report, there is a series of dates of hearing on some of which evidence was produced by one party or the other. On the last of such dates the final order was passed. Under Section 139-A (2), which was added by the Amending Act 18 of 1923, proceedings under Oh. 10, Criminal P.C., are to be taken in two distinct stages. Where obstruction to the use by the public of any way, as in the present case, is alleged and denied, the question to be decided at the threshold of the case is whether the denial of the existence of the public right claimed is well founded. In the present case, the learned Magistrate seems to maintain in his explanation that Gangadhar did not deny the public character of the lane.' I find that the controversy from the very start has been as to whether the land on which Gangadhar made certain constructions is part of the public way, as is alleged by the District Board, or it is his private property, as is alleged by Gangadhar. Before the Magistrate could proceed under Section 137, Criminal P.C., he should have found whether Gangadhar's allegation was prima facie right. It is generally desirable that the Magistrate should record a definite finding in terms of Section 139-A 2), though if the record otherwise indicates that he did find that the denial of the public right was well founded, the requirements of Section 139-A (2) would be made out. In this case the entire proceedings were taken at one stretch, and the parties could not possibly understand where the enquiry under Section 139-A (2) terminated and that under Section 137, Criminal P.C., began. It is obvious that the Court and the parties should distinctly understand when the case enters on the second stage of the proceedings provided by Section 137, Criminal P.C., so that the evidence not of the preliminary character contemplated by Section 139-A (2), but such as is contemplated by Section 137 be produced. I do not think that in the present case it can be said that on any particular date the Court found that there was no reliable evidence in support of Gangadhar's denial and that proceedings under Section 137, Criminal P.C., could commence thereafter. In these circumstances, the proper order to pass is to set aside the order of the Magistrate and to direct him to proceed according to law. It is ordered accordingly.
3. It is to be regretted that a case of such trifling importance should have occupied so much of public time in the past and is now to have a fresh lease of life; but in the circumstances there is no other alternative but that indicated above.