1. In my opinion this rule must be made absolute. The Magistrate has not complied with the provisions of Section 139-A Criminal P.C., before proceeding to make relevant enquiry under Section 137. What happened was that the Magistrate having made a conditional order, the present petitioners appeared before him. It is clear that they denied the existence of any public right of way. The question is whether the Magistrate found that there was any reliable evidence in support of this denial. True, it was no part of his business to try this matter. His business was to find whether there was any reliable evidence in support of the denial. Then, what happened was that he adjourned the case so that the petitioners might adduce evidence in support of this denial. Then the petitioners made a suggestion that the Magistrate might go to the spot and hold his enquiry. Thereupon he ordered a local enquiry to be held and as the result of that local enquiry he got a certain report. This report was to the effect that it was a foot way and not a way for carriages and carts and so on. Then the matter came back to the Magistrate but he never applied his mind, so far as I can see, to the question whether there was any reliable evidence in support of the denial, nor has he come to any finding on that point. On the contrary he did proceed thinking that he was proceeding under Section 137 and tried himself the question whether there was a public right of way or not. He says:
Two points require determination viz., whether the public have lawfully used the way and whether the defendants caused any obstruction therein.
2. Under Section 137 the first matter does not arise at all. Then he observes:
This fact is also proved by P.Ws. 2, 3, 5, 6 and 8. P. W's. have also proved that the disputed way was 7 or 8 cubits wide.
3. It seems to me that in these circumstances the complaint of the petitioners is made out. If this learned Magistrate was going to try the question whether there was a public right of way or not under Section 137, then he was going to do the very thing he was told not to do. That question has got to be decided one way or the other under Section 139-A. It is clear to me that the Magistrate did not take the correct course.
4. This rule is made absolute and the order absolute is set aside. The case must go back to the learned Magistrate in order that he may try it again according to law.
5. I agree.