JUDGMENT

Lancelot Sanderson, C.J. - This is a Reference to a Full Bench by my learned brothers Newbould and Suhrawardy, JJ. The questions which are submitted are:

1.When in proceedings u/s 133, Criminal Procedure Code, arising out of an alleged obstruction of a way used by the public, the defendant sets up a claim of right which is found by the Magistrate to be made in good faith, is the Magistrate's jurisdiction entirely ousted?

2.Or can the Magistrate, if he does not think this claim well-founded though he considers it made in good faith, allow the defendant a reasonable time to assert this claim by a civil suit and if he does not go to the Civil Court within such time or fails there, can the Magistrate continue the proceedings u/s 133, Criminal Procedure Code?

Was the case of Belat Ali v. Abdur Rahim 8 C.W.N. 143 : 1 Cr. L.J. 70 giving effect to the dictum in Luckhee Narain Banerjee v. Ram Kumar 15 C. 604 at p. 570. 7 Ind. Dec. 960 rightly decided?

2. The following facts may be taken from the case:

This Rule is directed against an order passed by the Sub-Divisional Magistrate of Alipore in proceedings u/s 133 of the Code of Criminal Procedure. Ali Nashkar and others instituted proceedings Under that section against the petitioners before us, Ram Sagar Mandal and another person, alleging that they had obstructed a public road. Ram Sagar Mandal showed cause denying the existence of the alleged public road and getting up a claim to the land in dispute." On the 15th April last, the Magistrate passed the following order:

I have heard the Vakils for both the parties. The second party contend that in a criminal case I held that there was no pathway, so the conditional order ought to be discharged. The Vakil for the first party has urged that this was a case of assault and my finding ought not to bird the present parties. I have given a careful consideration to the arguments advanced. I am of opinion that the claim of the second party though not substantiated is not mere pretence and is not raised to oust the jurisdiction of this Court but it is raised bona fide, so I think that following the ruling laid down in Manipur Dey v. Bidhu Bhusan Sarhet 26 Ind. Cas. 148 : 42 U. 158 : 18 C.W.N. 1083 : 15 Cri L.J. 698 I will give the second party a chance to go to the Civil Court. The second party should file a case within a reasonable lime and I allow them time till 25th May 1921 to do so, and if the second party does not go to the Civil Court within this time, the trial will be continued. Put up on 25th May 1921. The petitioner did not go to the Civil Court and on the 25th May, the Magistrate refused to re-consider his order and directed witnesses to be summoned.

3. On behalf of the petitioner it was contended that on the Magistrate's finding that the petitioner's claim was "bona fide" his jurisdiction u/s 133, Criminal Procedure Code, came to an end and be was not justified in continuing the proceedings, because the petitioner failed to bring a suit in the Civil Court. On behalf of the opposite party it was contended that the finding that the claim, though made bona fide was not Substantiated justified the Magistrate's order which is supported by decisions of this Court.

4. The case of Luckhee Narain Banerjee v. Ram Kumar 15 C. 604 at p. 570. 7 Ind. Dec. 960 was referred to in the case as follows: "But in the case of Luckhee Narain Banerjee v. Ram Kumar 15 C. 604 at p. 570. 7 Ind. Dec. 960 a distinction is drawn at page 573 between a claim of right which the Magistrate thinks well founded and a claim of rights which the Magistrate does not think well-founded but considers to have been made bona fide. It was laid down that in the former case the Magistrate will take no further proceedings but in the latter he should allow the defendant an opportunity of asserting his claim by civil proceedings and that if he does not go to a Civil Court within a reasonable time or fails there the Magistrate will proceed."

5. The two learned Judges doubted the co