In proceedings under Section 133, Cr. P. C. a Criminal Court does not go into questions of law and fact regarding the existence of a public right of way. This is a question which can only be decided by the Civil Court.

( 1 ) THIS is a revision arising out of proceedings under Section 133, Cr. P. C. initiated by the applicant.

( 2 ) THE applicant had alleged that he owned a field No. 175 which he had purchased from one girwar a son of Narain Singh about four years back and that the way to his field had always been through the fields of opposite parties numberings 202, 203, 224 and 225. The opposite parties, howeyer, blocked the way to his field by erecting a wall between his field and plot No. 202. The sub-Divisional Magistrate Pratapnagar, district Tahri called for a report from the Supervisor kanungo. Bis report favoured the allegations made by the applicant. Accordingly ha passed a preliminary order under Section 133, Cr. P. C. calling upon the opposite parties to show cause why obstructions alleged by them may not be removed.

( 3 ) OPPOSITE parties appeared and alleged that there was no public right of way. . . . As the opposite parties denied the existence of public right of way through their fields, the learned Magistrate initiated proceedings under Section 137, Cr. P. C. The opposite parties examined five witnesses and also filed copies of the khasra and the eajra of the latest settlement of the village. In these khasras and sajras no way was shown through the field of opposite party nor was there any entry about any way in the khasra. The witnesses examined besides opposite party No. 1 were Fakira singh, Dayal Singh, Kama Singh and Dhan Singh, Fakira. Singh was said to be the tenant of the previous tenure-holder of the applicant. Oayal Singh was the tenure-holder of the plots lying to the north of the plots of the opposite parties. The case of the opposite parties was that the applicant used to go to his field through the field of this Dayal Singh and not through their fields. The other two wit-nesses were cultivating the fields in the vicinity of the disputed plots. All of them supported the case of the opposite parties.

( 4 ) THE learned Magistrate, however, issued local commission to the Tahsildar Pratap Nagar. The tahsildar not only inspected the locality himself but also recorded the evidence of certain witnesses and then gave a report supporting the case of the applicant that there was public way which had been obstructed by the opposite parties.

( 5 ) THE learned Magistrate did not "believe the oral and documentary evidence led by the opposite parties in view of certain omissions made by the witnesses about the way of one mahendra Singh of plot No. . 207 and the report of the Tahsildar. Accordingly he asked the parties to lead evidence under Section 138, Cr. P. C. in connection with the obstruction.

( 6 ) AGAINST this order, the opposite parties filed revision in the court of the Sessions Judge, Thehri garhwal. The learned Sessions Judge felt that the Magistrate had not properly dealt with the evidence and that the case was such that he should himself scrutinise the "evidence to ascertain whether the applicant proved that the way in question was a public way. Then after a perusal of the evidence on record he held that there was no evidence that there was a public way or that there was any circumstance which might discredit the oral evidence led by the opposite parties. He also did not agree with the learned Magistrate that the report of the Tahsildar could be relied upon in evidence. Accordingly he set aside the order passed by the learned Magistrate and asked him to stay proceedings until the existence of such a right of way had been decided by a competent court as required by Section 137; (2), Cr. P. C.

( 7 ) THE applicant has now come to this Court in revision and contends that the learned Sessions judge has gone beyond his jurisdiction in revaluating the evidence or in holding that there was no public way or that the report of the Tahsildar was not admissible in evidence. On the other hand, the learned Counsel for the opposite parties has contended that the learned Magistrate has also gone beyond his juris