1. This Rule is directed against an order made under Section 37 of the Criminal Procedure Code making absolute a conditional order made under Section 133 of that Code. The case relates to certain pillars, which, it is alleged, the petitioner has erected on a public road in the village of Madral. The conditional order required the petitioner to demolish the pillars or to show cause why the pillars should not be demolished. The petitioner did show cause and the Magistrate went into evidence. The case pursued a regular course until, without notice to the parties, the learned Magistrate, who is the Sub-Divisional Officer, went to the spot himself and conducted in the absence of the parties a local enquiry on his own account. On that occasion the Magistrate prepared a plan of the road, and when we come to his judgment it, is plain that the Magistrate has decided this case not on the evidence adduced by the parties but entirely upon the result of his own enquiry and on the basis of the plan that he had himself made. The Magistrate was not entitled to deal with the case in that way or to substitute his own evidence for that adduced by the parties. In our opinion the order must be set aside. When this case comes under the order which we propose to make before another Magistrate, the Sub-Divisional Officer will no doubt be a competent witness.
2. In the result we direct that the order made under Section 137 be set aside. The case will be transferred for trial from the file of the Sub-Divisional Officer of Barrack-pore to the file of such other competent Magistrate as the District Magistrate may appoint.
3. The petitioner will be given a fresh opportunity of showing cause against the conditional order and the case will be taken up from that stage and disposed of in accordance with law.