( 1 ) THIS is a reference by the learned Additional Sessions Judge of Bahraich in a cage under section 133, Criminal P. C. The recommendation is that the order of Sari Farhat Ali, sub-Divisional Magistrate of Nanpara dated 16-4-1950 be set aside and the matter be dealt with according to law.

( 2 ) THE facts are not in dispute. The learned Magistrates predecessor, Shri J. N. Pradhan passed a preliminary order on 18-1-1950, on the complaint of Ram Cherey alias Ram Charan calling upon baba Ram Priya DAS, opposite-party, to remove certain obstructions which, according to the evidence before the learned Magistrate, appeared to encroach upon a public pathway in village rupaidith. He was given, in pursuance of the provisions of Clause (1) of Section 133, Criminal p. C. , the option to appear before the Court on 27-1-1950, and to make a motion for setting aside or modifying the order, if he thought fit. On the date fixed, however, the notice was not returned to the Court after service and the case was adjourned to 8-2-1950. On that date service was held to be insufficient. The case was postponed to 20-2-1950, and the learned Magistrate gave elaborate directions in accordance with Section 134 (2) of the Code to the effect that if Ram priya Das was not at his house and personal service could not be effected on him notice should be given by beat of drum and a copy thereof should be stuck on the gate of the premises of Baba ram Priya Das and also at the place where the offending encroachments were made. The order was carried out in due course and the information contained in the notice was also conveyed to one Prabhu Das who was found on the premises and was a chela, of Baba Ram Priya Das. Notwithstanding all this, no one appeared on 20-2-1950, to show cause on behalf of the opposite party. Shri Pradhan, therefore, made the order absolute and gave a warning that if the unlawful encroachments were not removed by 1-3-1950, Baba Ram Priya Das would render himself liable to prosecution under Section 188, Penal Code. On 27-2-1950, the opposite party presented himself in Court and filed objections against the final orders. He alleged that he was not personally served with notice, that Ram Cherey was aware that he was living in Ajudhia, that he had no knowledge of the proceedings till 26-2-1950, that he had not made the alleged encroachments, that the laud belonged to the temple and that if it be established that the constructions complained of constituted obstructions to any public pathway the responsibility therefor rested on some other persons.

( 3 ) THE objections came up on 16-4-1950, before Shri Farhat Ali, who had meanwhile succeeded shri Pradhan. Baba Ram Priya Das somehow persuaded Shri Farhat Ali to reopen the matter and to hold that the pathway was not a public way and that the so called constructions existed on babajis own land. The learned Magistrate came to the conclusion that no action could be taken against Baba Ram Priya Das but he nevertheless passed the following order:

"i find that Ram Chereys house is virtually cut off from the rest of the village if the path is closed to him. . . . . . Baba Priya Das will, therefore,. . . allow carts brought by Ram Cherey to pass through it. The carts will be required by Ram Cherey only now and then and he will not unnecessarily harass Babaji by bringing carts to his house daily. "

( 4 ) DISSATISFIED with the aforesaid order, the complainant went up to the Court of the Additional sessions Judge Bahraich, in revision. The learned Judge is of opinion that Shri Pradhans successor had no jurisdiction to cancel or modify his order of 20-2-1950, and that the subsequent order should, therefore, be set aside. Hence the reference.

( 5 ) THERE can be no doubt that if a Magistrate empowered to make an order under Section 133, criminal P. C. , follows the procedure prescribed by that section and Section 134 and the person against whom the preliminary order was made does not perform, within the