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, t