Asutosh Mookerjee, Acting C.J.
1. This Rule arises out of a proceeding taken under Section 133 of the Code of Criminal Procedure. The person 'upon whom the conditional notice under that section was made appeared to show cause and at the same time claimed the appointment of a Jury. The Magistrate forthwith proceeded to appoint a Jury, The Jury thus appointed submitted three reports; three of the Jurors by two separate reports signed by two and one respectively expressed the opinion that the way in question was not a public way, while the other two were of opinion that and the way in question was a public way and that the conditional order of the Magistrate should be made absolute. The Magistrate for certain reasons, into which we need not enter, refused to accept the verdict or opinion of the majority of the Jury, and transferred the case to another Magistrate in order that it should be dealt with in the manner provided in Section 137 of the Code. The Magistrate some to the conclusion that the way in question was a public way and that the conditional order made was reasonable and proper. He, therefore, made that order absolute. He does not, as a math of fast, find whether the claim put forward by the person required to show cause was not a claim put forward in good faith. In a large number of cases decided by this Court, it has been held that, before a Magistrate proceeds to the appointment of a Jury, be must, when those questions are raised, first of all decide on evidence whether the way in question is or is not a public way and whether the claim to the contrary put forward by the person showing cause is or is not a claim put forward in good faith. If he comes to the conclusion that the way in question is a public way and that the claim put forward by the person required to show cause is merely a pretext to oust the Magistrate's jurisdiction, he may then proceed to appoint a Jury if the person required to show cause still desires the appointment of a Jury in order that such Jury may determine whether the conditional order made is reasonable and proper. We are bound by these decisions and must, therefore, hold that the proceedings in the present case have been irregular. We, therefore, set aside the order complained of and all orders made in these proceedings on and after the 29th July 1920, and direct that the Magistrate do proceed afresh in the manner indicated in the foregoing judgment.