Lawrence Jenkins, C.J.
1. The proceedings which are called in question by the Rule now under consideration, arise out of action taken by the Magistrate under Chapter X of the Code of Criminal Procedure. Section 133 provides that whenever a Magistrate of the qualifications there described considers, on receiving a Police report or other information and on taking such evidence, if any, as he thinks fit, that any unlawful obstruction should be removed from anyway used by the public, he may make a conditional order of the nature described in the section and may call upon the person affected to appear before himself and move to have the order set aside or modified. Here it appeared to the Magistrate that there was a public nuisance coming within the terms of that section and the nature of the nuisance was an unlawful obstruction of a way used by the public. He accordingly made a conditional order. The person affected undoubtedly appeared and showed cause, but notwithstanding that the Magistrate has allowed the proceedings to drop, without following the procedure prescribed by Section 137, Clause (1). It is this omission on the part of the Magistrate that has led to the Rule being granted calling upon the opposite party to show cause why the order complained of should not be set aside and such other and further order made as to this Court might seem fit.
2. We have been assured that there are a large number of cases which are in the direction of sanctioning what the Magistrate has done, though even the authorities do not go quite the length that he has. But whatever may have been decided, we cannot escape from the words of the Legislature until we are told by some higher authorities that we must. The Legislature in the event that has happened has directed that the Magistrate shall take evidence in the matter as in a summons case, and in so far as he has failed to do that, he has not performed the duty cast upon him by law. It appears to me that the Rule is rightly conceived.
3. It is said that it is open to the Magistrate to consider whether the claim by the opposite party in derogation of this asserted public right affords an answer or not. Hut in deciding that Section 137 mast be followed; we in no way deprive the opposite party of his right to show that the terms of Section 133 do not apply or say that the Court should not apply them in the particular circumstances of the case, either by reason of real doubt as to the applicability of the section or otherwise. All we have to say is that the Magistrate having taken such measures as make the provisions of Section 137 applicable, those provisions must be observed.
4. Therefore, we must make the Rule absolute and direct the case to go back to the Magistrate in order that he shall take evidence in the matter as in a summons case in the manner provided by Section 137. It will be open to him, as I have indicated, to consider, when that evidence is taken, whether there is a complete answer to the case against the opposite party or whether this is not a proper case where the parties should be referred to the Civil Court for the purpose of determining a matter which for some reason or other the Magistrate considers that he cannot decide. But in saying that I do not wish to encourage the idea that the Magistrate should endeavour to escape from dealing with matters which legitimately fall within his jurisdiction.
5. There is one further matter that has been pressed upon us. It is that these proceedings are in some measure barred by the doctrine of res judicata. We are not satisfied that there is any room on the facts of this case for the application of this doctrine.
6. I agree.