( 1 ) IT appears that an application was made by one Kamla Pandey against the present applicant (Sadanand Tiwari) for the removal of certain encroachments which were alleged to have been made in plots Nos. 39 and 42 which were said to be public path and which adjoined the house of sadanand Pandey which was in plots Nos. 39 and 41. On this application the Naib Tahsildar was deputed to make measurement. He measured and reported that there was an encroachment in plot No. 39 of 36 Karis by 3 Karis in front of plot no. 40 and 39 by 2 Karis in front of plot No. 41. After this report a preliminary order was passed against Sadanand to remove the obstructions within fifteen days or show cause against it. Sadanand appeared in response to the notice issued to him. His defence was that he had not made the alleged encroachment. The learned Magistrate after hearing both the parties was of the opinion that there was an encroachment in plot No. 40 to the extent of 36 x 3 Karis. He, therefore, modified the preliminary order and directed Sadanand to remove the said encroachment within fifteen days and in default it would be removed through police at his cost. Sadanand filed a revision against the said order before the learned District Magistrate, Ghazipur. It was contended in revision that Under Section 137, Cr. P. C. the learned Magistrate was not competent to modify the preliminary order and that he could either confirm it or vacate it. It was further contended that under Section 139, Cr. P. C. the learned Magistrate sitting with jury could modify the preliminary order passed under Section 133, Cr. P. C. In support of this contention reliance was placed on a decision of the Madras High Court reported in Dsilva v. Dsilva, AIR 1943 Mad 335 (A ). The learned Additional District magistrate was of the opinion that the above decision was not applicable to the facts of this case and that the trial Magistrate was competent to modify the preliminary order passed under Section 133, Cr. P. C. He, therefore, rejected the revision. Sadanand has now come up to this Court in revision.

( 2 ) IT has been contended before me that under Section 137, Cr. P. C. the Magistrate was not competent to modify the preliminary order passed by him under Section 133, Cr. P. C. and that he could either stay further proceedings or make the preliminary order absolute. In support of his contention he has relied on one more decision of the Calcutta High Court reported in Secretary, Rate Payers Committee, North Barackpore Municipality v. Dwip Narain singh. AIR 1952 Cal 127 (B), besides that of Madras High Court already referred to above. In both these cases it was held that under Section 137, Cr. P. C. a Magistrate sitting alone was not competent to modify the preliminary order passed by him under Section 133, Cr. P. C. In the calcutta case it was alleged that encroachment had been made on several roads and a preliminary order was passed under Section 133, Cr. P. C. in respect of the alleged encroachments on all the three roads. After a consideration of the evidence the learned Magistrate found that the encroachment had been made only on one of the three roads, namely Bagdipara Ghat Road. He accordingly, modified his preliminary order and directed the encroachment on this particular road to be removed. It was held by the Calcutta High Court that the above order passed under Section 137. Cr. P. C. by the Magistrate was illegal and beyond his powers under that section.

( 3 ) IN this connection it may be necessary to refer to the provisions of Sections 133, 135, 137 and 139. Cr. P. C. Section 133 provides that where a preliminary order has been made against a certain person he may 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. Section 135 lays down that the person against whom such order is made shall (a) perfor