Iqbal Ahmad, J.
1. This is a reference by the learned Sessions Judge of Shahjahanpur under Section 438, Criminal P.C., recommending that an order passed by a Magistrate of the first class under Section 137(3), Criminal P.C., be set aside and the learned Magistrate be directed to hold a further enquiry before making his conditional order under Section 133, Criminal P.C., absolute.
2. A notice under Section 133(1), Criminal P.C., was issued so far back as the 31st October 1924, calling upon Jagan Nath Prasad to remove a balcony constructed by him, Jagan Nath Prasad appeared and showed cause against the conditional order and that order was made absolute on the 5th January 1925. This order was set aside by this Court and then a fresh conditional order was made, with respect to the same balcony, by the Magistrate concerned on the 29th May 1925 and notice of the same was served on Jagan Nath Prasad. He again appeared and showed cause but the conditional order was for the second time made absolute on the 26th November 1925. This order was in revision again set aside by a learned Judge of this Court, and the case was remanded with a direction to the Magistrate to restore the case to its file and
to proceed in accordance with the provisions of Section 139(a), Criminal P.C.
3. Thereafter on the 21st May 1926, a notice was issued calling upon Jagan Nath Prasad to state as to whether or not he admitted the fact of the land in dispute being nazul land. A reference to the order-sheet, dated the 2nd October 1926, shows that on that date it was held by the Magistrate that the land in dispute belongs to the Government. I have not been able to trace that order on the record. However, as pointed out by the learned Sessions Judge the learned Magistrate has held an enquiry under Section 139(a), Criminal P.C., and has come to the conclusion that the land in dispute is a public place. But it appears From the report of the learned Sessions Judge that the learned Magistrate has not complied with the provisions of Section 137(1), Criminal P.C., and has from the mere fact that the balcony overhangs a piece of land that belongs to the Government, drawn the inference that the balcony causes an obstruction to a public place. The provisions of Section 137(1), Criminal P.C., are mandatory and before making the conditional order absolute it was imperative that evidence should have been taken in the case as in a summons case. The Magistrate could not, without recording evidence, act on his own-opinion, that the balcony caused an obstruction to a public place: vide the case of King-Emperor v. Hingu  31 All. 453.
4. For the reasons given above I accept the reference and send the case back to the Magistrate with a direction to hold a further enquiry as required by Section 137(1), Criminal P.C., before making the conditional order absolute.
5. It is needless to point out that there has been a lamentable delay in the disposal of an otherwise simple case, and this delay has been due to the careless disregard of the mandatory and imperative provisions of the Code by the Magistrate concerned, and it is to be hoped that now the case will be decided as early as possible.