The main legal point established in the judgment is that the Magistrate who passes the preliminary order under Section 133, Criminal P.C. must decide whether to enquire into the matter himself or direct another Magistrate to do it, and that there is no provision for piecemeal transfer of a case.

Sen, J.

[1] This is a Reference by the Additional Sessions Judge of Malda, West Dinajpur, recommending that the order passed in proceedings Under Section 133, Criminal P.C. by Sri T. P. Ghose, Magistrate exercising First Class Powers at Balurghat, should be set aside.

[2] The facts briefly are as follows : Pran Krishna Das filed an application Under Section 133, Criminal P.C. in the Court of the Sub Divisional Magistrate, Balurghat, alleging that the petitioner 'rihyimi Bundar Sarkar had obstructed a public pathway. Upon this application being made, the Magistrate ordered a preliminary enquiry by the police and thereafter he passed a conditional order Under Section 183, Criminal P.C. directing the petitioner to remove the obstruction or to appear before him and move to have the conditional order set aside. When the petitioner appeared before the learned Sub-Divisional Magistrate the learned Magistrate instead of holding any enquiry himself passed a somewhat curious order which I reproduce below:

Second party denies existence of public way and also denies obstruction. First party to prove Public nature of the way before Sri D. Maitra, Magistrate, First Class.

[3] Thereafter, the matter was heard by Sri D. Maitra purporting to act Under Section 139a, Criminal P.C. He holds that the denial of the existence of public right of way by the petitioner was a mere pretence, this Magistrate passed no further orders but sent his report or decision to the Sub-Divisional Magistrate for orders. The Sub-Divisional Magistrate then passed an order sending the case to Sri T. P. Ghose, Magistrate, First Class, "for favour of disposal according to law" and this learned Magistrate passed the final order holding that there was on obstruction and making the order of the Sub-Divisional Magistrate absolute.

[4] Against this order, the petitioner moved the learned Sessions Judge and he has made the present reference. He points out that the order of the Sub-Divisional Magistrate directing Sri D. Maitra to deal with the objection of the petitioner as to the existence of a public way was an order without jurisdiction and that consequently the entire proceedings have been vitiated.

[5] The case has been argued by the learned advocates for both parties before me in great detail. Mr. Roy, appearing for the opposite party, has argued with ability and frankness. Two main questions arise for determination and they may be framed thus: (1) Has a Magistrate, who passes an order Under Section 133, Criminal P.C., directing a party to remove an obstruction or to appear before him and move that the order be set aside power to transfer the case when the party appears before him ? (2) If he has such power can he order a "piecemeal transfer" of the case by directing another Magistrate to deal with the question whether there is reliable evidence in support of the denial of the existence of a Public pathway ?

[6] In my opinion both these questions must be answered in negative. Under Section 133, Criminal P. C., when information is placed before a Magistrate that there has been an obstruction to a public pathway, the learned Magistrate may pass an order upon the person complained against directing him to remove the obstruction, or to appear before him or some other Magistrate of the First or Second Class to show cause why the preliminary order passed by him should not be set aside or modified. The words in the last portion of sub-s. (1) of Section 133, Criminal P.C., are as follows:

to appear before himself or some other Magistrate of the First or Second Class at a time and place to be fixed by the order and move to have the order set aside or modified in the manner hereinafter provided.

[7] It is clear from this portion of Section 133, Criminal P.C., that at this stage a Magistrate has to decide whether cause has to be shown before him or before some other Magistrate not below a Magistrate of the 2nd class. He is to make up his mind at this stage. There is no provision in