Nasaruddi and Charoo vs Akiluddi

This is a matter dealt with under Chapter X of the Code of Criminal Procedure. The contention raised was that the alleged obstruction was not a way which is or may be lawfully used by the public within the terms of sec. 133. The Magistrate without dealing with this objection referred it to a jury who returned that the Magistrate''s order was a reasonable and proper order, and the Magistrate has accordingly directed the removal of the obstruction. The Magistrate should have found whether the objection taken was a bond fide objection, and if he found this, he should have abstained from further action until the public right of way had been determined by a competent Court. That has been held in Luckhee Narain Banerjee v. Ram Kumar Mukherjee I. L. R. 15 Cal. 564 (1888), and in other cases of more recent date. No doubt the report of the jury is that the way obstructed is used by the public, but they were not competent to do so, for the decision of this matter affected the right of the Magistrate to interfere under sec. 133, and it is only when the Magistrate is competent to pass an order under sec. 133 that a jury can be appointed to consider whether it is a reasonable and proper order. The Magistrate has, no doubt, not found that the objection was made bond fide, but we think that it is unnecessary that we should require this to be expressly found. The police-report made by his orders shows ample reason for finding that in favour of the Petitioner. We must therefore direct that the order of the Magistrate under sec. 139 must be set aside as ultra vires. The parties must be left to have it determined by a competent Court that the way in question is a public way before the Magistrate can proceed further under Chapter X.