1. We are invited in this rule to set aside an order made by the Sub-Divisional Magistrate of Contain, under Section 133 of the Criminal Procedure Code. On the 24th May a conditional order was made against the petitioners under that section. They showed cause on the 19th June and denied that there was any public road at the place where they had erected the disputed hedge. On that date the Magistrate recorded an order to the effect that he would hold a local enquiry on the 30th June. The local enquiry was as a matter of fact held on the 4th July, and the Magistrate appears to have gathered information from the people on the spot, the majority of whom made statements which, if accepted, would justify an order under Section 133 of the Criminal Procedure Code. Three days later, the order now in question was passed. The petitioners take exception on the ground that the Magistrate has not acted in accordance with the provisions of the Criminal Procedure Code and that the order cannot be supported as it is not based upon any legal evidence. In our opinion, it cannot be reasonably disputed that the proceedings are irregular, but it has been urged by the Magistrate as also by the Sessions Judge that this is not a criminal proceeding and that as the parties consented to an irregular procedure, they cannot now invite the Court to set aside the proceedings on the ground that they were irregular. The Magistrate in his explanation submitted to this Court states that the parties consented that he should hold a local investigation and that any order that he might make upon information gathered on the spot would be treated as binding upon them. There is a controversy as to what was actually agreed upon by the parties before the Magistrate; but we shall proceed on the assumption that the present petitioners consented to abide by any order which the Magistrate might make upon the result of his local investigation. The question arises, whether an order of this description is contemplated by the Code.
2. Section 135 provides that the person against whom a conditional order has been made may either show cause against the order or apply to the Magistrate by whom it was made to appoint a jury to try whether the same is reasonable and proper. If he adopts the first of these courses, Section 137 prescribes the procedure to be followed. If he adopts the second course, Section 158 prescribes the procedure to be adopted by the Magistrate. In the case before us, as the petitioners appeared and showed cause, we have to apply the provisions of Section 137. Sub-section 1 of that section provides that if the person called upon to show cause appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case. Sections 354 and 355 then indicate the procedure to be followed in recording the evidence. The language used by the Legislature in Section 137 is, as observed in Kishori Lal v. Emperor 13 C.W.N. 367; 4 Ind. Cas. 72; 10 Cr. L.J. 494 clearly mandatory, and, if the party appears to show cause, the only course open to the Magistrate is to take evidence in the matter as in a summons case. The law does not contemplate that ho should act as an arbitrator at the instance of the parties. The reason for this is manifest.
3. As in a proceeding under Section 133, public rights are involved, the matter must be determined by the Court upon legal evidence and not made the subject of compromise by the disputing parties. In this view of the matter, it is clear that even upon the assumption that the present, petitioners agreed to abide by the decision of the Magistrate based, not upon evidence legally received, but upon information gathered upon local enquiry, the order of the Magistrate cannot be supported. No waiver on the part of the petitioners could confer on the Magistrate authority to act in a manner not prescribed by the Legislature. The result, therefore, is that the Rule must be made absolute and the order of the Court below discharged. The costs if any, paid by the petitioners must be refunded.