Sheikh Imrat Ali vs Sheikh Amjad Ali

This is a reference by the Sessions Judge of Purnea in a case which was instituted u/s 133 of the Code of Criminal Procedure. The Deputy Magistrate is perfectly correct in saying that there is no express provision of law directing the adjudication of a bona fide claim made by the opposite party, before sending the case to a Jury, but it is too late to go back upon a long line of cases in at least three of the High Courts in India, which lay down that before any proceeding can be taken by a Magistrate u/s 183 of the Code of Criminal Procedure or, at all events, before any reference can be made to a Jury it is incumbent on the Magistrate himself, when a claim for right is set up, to determine whether that claim is bona fide or not and whether the road or pathway is a public path way or not and that it is not open to the Magistrate to leave the decision of that question to the Jury appointed u/s 138 of the Code. We, therefore, set aside the proceedings of the Deputy Magistrate and direct that he restore the case to the pending file and dispose of it according to law.