Prinsep and Hill, JJ.
1. The High Court regret to have to call the attention of the Sessions Judge to the manner in which this reference has been made in disregard of the orders contained in Circular, July 22nd, 1863, General Rules and Circular Orders of the High Court (Appellate Side, Criminal, p. 124).
2. When the person called upon under Section 133 to show cause why an obstruction should not be removed from a public way denies that it is a public way, it is for the Magistrate to determine whether this is a bond fide objection, and he cannot in spite of the objection (unless he determines that it is not bond fide) refer the matter to a jury. The jury is not competent to decide whether the way obstructed is or is not a public way. They can merely find whether the Magistrate's order is reasonable and proper, as originally made, when the matter is properly submitted to them. The Magistrate, moreover, is mistaken in thinking that a jury can decide such a matter without taking evidence and merely on inspection of the locality. They are bound to hear the parties and such witnesses as they may desire to have heard. The order of the Magistrate must be set aside.
3. The attention of the Sub-Divisional Magistrate is directed to Section 138, which requires him to nominate the foreman and one-half of the remaining members of the jury. This, it has been held, means that he is to exercise his own independent discretion in such nomination. He has not done so in the present instance, for he reports that he appointed 'one of the petitioner's nominees to act as foreman' and nominated the others, after inquiry from the mukhtears of both sides, and from the other party.