1. This is an application in revision on behalf of one Abdul Shakur, a clerk in the General Post Office, Agra, against an order of a Magistrate directing that an encroachment on a public road in Tundla made by the applicant should be removed. The history of this proceeding is that the District Board made an application to the Magistrate alleging that there was this encroachment by building a shop, etc. on the public road which was in the charge of the District Board. It has been argued by the learned Counsel for the applicant that the duty of the Magistrate, on receiving this information, was to take evidence and to come to a finding on the question of whether the encroachment was made on the public road or not. It is argued that this duty is imposed on the Magistrate by Section 133 (1), paras 1 and 2, Criminal P.C. But I consider that the expression 'on taking such evidence, if any, as he thinks fit' does not make it incumbent on the Magistrate to hold such an inquiry. In the present case the Magistrate had the allegation before him that the encroachment was made on the public road' and he adopted the course of issuing notice on the opposite party to put in his written statement, and on the parties to produce their evidence. If a Magistrate were to come to a finding ex parte that there was an encroachment on the public road before he made an order for the opposite party to put in a written statement and produce evidence it would be merely, in most cases, a waste of time, and no such procedure is laid down by the section. It is after the parties have appeared before the Magistrate that he makes his enquiry and comes to his finding on this point.
2. On 6th March 1929 Abdul Shakur put in a written statement in which he alleged that he was in possession of the land on which he had built this alleged encroachment, and he claimed to be holding under a lease originally from the zamindar on 3rd February 1894 and subsequently from the District Board in 1904. If matters had proceeded in the ordinary way, presumably the parties would have produced evidence before the Magistrate or the defendant might have objected to the jurisdiction of the Magistrate. But on 18th March 1929, Abdul Shakoor put in an application to the Magistrate asking that the matte: should be tried by a jury. This application is under Section 135 (b), Criminal P. C Accordingly this application shows the Abdul Shakur had abandoned the contention that this matter did not com under Clause 10, Criminal P. C, and his contention that the matter was one for the civil Court and not for a Magistrate In that application Abdul Shakur nominated two of his coreligionists as members of the jury. The District Boar nominated two persons, one of whom, Khairathi Beg, was a member of the District Board. The Magistrate nominated the Naib Tahsildar as foreman. It is no urged that the jury was improperly constituted, because the District Board had nominated one of its members as a member of the jury. Reference is made to Farzand Ali v. Hakim Ali  37 All. 26, and it is claimed that this ruling is an authority for the proposition that it was improper for the District Board to nominate one of its members. In that case there was an alleged encroachment on a public road, and the matter was brought to the notice of the Magistrate by a petition presented by a private individual Hakim Ali. The Magistrate in appointing a jury asked Hakim Ali to nominate a member of the jury. Hakim Ali nominated a person who was his supporter. A learned single Judge of this Court came to the conclusion that it was improper that the Magistrate should have had a member of the jury nominated by Hakim Ali. On p. 28 of the ruling it is stated:
In the present case the question before the Magistrate was whether there had been an obstruction to a public way, or inconvenience of members of the public entitled to use the same. Hakim Ali had no locus standi in the matter, once he had performed what was perhaps his duty as a good citizen in calling the attention of the Magistrate to the existence of the nuisance. In so far therefore as the rulings to which I have been referred lay down the principle that it is expedient that Magistrates should be on their guard against allowing a proceeding of this sort to assume the character of a private litigation and allowing it to be treated as a dispute to which two private individuals representing opposite interests are the parties, I am in entire accord with the same.
3. This ruling therefore lays down that a private individual should not be allowed to nominate a member of the jury to try the question of an encroachment on the public road But in the present case the District Board is not a private individual, The District Board is in charge of that public road, and therefore the ruling has no application to the present case. I do not consider that a member of the District Board, who is appointed to carry out certain public functions, is an unsuitable person to be nominated by the District Board to serve on a jury for purposes of seeing whether there is an encroachment on the public property under the control of the District Board. Accordingly I consider that the jury was not improperly constituted.
4. The only other point in the grounds of revision is that the matter was of a civil nature and that Section 133, Criminal P.C., does not apply. But by his application to have the case decided under Section 135 (b), Criminal P. C, the applicant has waived those claims and he cannot re-assert them at this stage of the proceedings. I consider that the finding of the jury was a finding by a validly constituted jury and the Magistrate has passed his order in accordance with that finding. Therefore it necessary that the order of the Magistrate should be upheld and I refuse this application in revision.