1. In this case it appears that on the 3rd January 1921, the Sub-Divisional Magistrate of Howrah made a conditional order under Section 133, Criminal Procedure Code, directing the removal of a certain wall as an obstruction to a certain public path. On the application of the person against whom the order was made a Jury was appointed on the 13th January 1921, under the provisions of Section 135 of the Code, Of the five Jurors one, it appears, never aa,ted, with the result that the report made by the other four on the 12th February 1921 could not be acted upon. Thereafter, apparently on an application made by both parties, the ease was referred to a fresh Jury consisting of three persons only. In the application to which we have just referred these three persons are spoken of as arbitrators, but in the appointment order and in the subsequent orders referring to them the Magistrate treats them as Jurors. If they are to be regarded as Jurors, it is obvious that in referring this matter to a Jury of three instead of to a Jury of five persons the Magistrate has acted improperly and his order, based upon the report submitted by a majority of those three, cannot be regarded as a good order. If they are to be regarded as arbitrators, then it would seem that in this Chapter re public nuisances, in which public interests are involved there is no provision for reference to arbitration. The order is next sought to be supported by reference to the provisions of Section 141 of the Code. But it does not appear to us that the conditions which would enable the Magistrate to make such order as he may think fit have been fulfilled.
2. On the whole we are of opinion that the order made by the Magistrate on the 3rd March must be set aside. We accordingly set aside this order and direct that the proceedings be re-opened at the point reached on the 15 th of February 1921 and thereafter heard and disposed of in accordance with law. This further enquiry or re-trial will take place in the Court of a Magistrate of the First Class other than the Magistrate in whose Court the order now set aside was made, such other Magistrate to be nominated by the District Magistrate of Howrah.