ORDER

M.H. Beg, J. - This is a criminal reference made by an Additional District Magistrate of Etawah after hearing an application in revision u/s 435, Criminal Procedure Code, preferred by six residents of village Lohia Bahadurpur, against the order of the Sub Divisional Magistrate, Etawah directing them to remove a wall constructed by them, passed u/s 133, Criminal Procedure Code, on 17 7. 1964:, which was confirmed on 30 10. 1964. The learned Additional District Magistrate came to the conclusion that, although the order directing removal of obstruction from a public path in village Lohia Kalan, was justified on merits, yet the procedure adopted in passing that order suffer from such grave irregularities that the order must be set aside. In. hi recommendation to this Court, the learned Additional District Magistrate has pointed out the following irregularities: firstly, the learned Additional District Magistrate thought that the mandatory provisions of Section 139-A, Criminal Procedure Code, had been overlooked inasmuch as the Sub Divisional Magistrate had not passed any order recording a finding that the public path existed at all; and, secondly, the learned Additional District Magistrate pointed out that, although the Tahsildar, Etawah, had been appointed the foreman of the jury, the report to him was submitted by the Naib Tahsildar, who had acted as the fore-man of theory. The learned Additional District Magistrate thought that there was some unwarranted delegation of its duties by the Tahsildar, Etawah, on the Naib Tahsildar. These are the only two irregularities which were noticed in the reference order.

2. I have gone through the record of the case which shows that the Sub Divisional Magistrate had examined to me evidence put forward before him before passing the conditional order u/s i33, Criminal Procedure Code, on 9.6.1964, and then he had subjected that six residents against whom the order was sought, to appear before him and show cause if they subjected to the order of removal of the wall. On 17. 7. 1964, the learned Magistrate had, after hearing the two sides, clarified his order of 9.6.1964 and given some specifications of the wall which constituted the obstruction on the, public path On 17. 7. 1964, the learned Sub Divisional Magistrate had also, by means of a separate order, appointed a jury of five persons who where to visit the site and return their verdict by 12. 8. 1964 on the question whether the path running from east to west, situated in village Lohia Kalan on the north of Matadin's (sic)use, was a public path and whether there was an obstruction of this path. The last, of the five members of the (sic) appointed was the Tahsildar of Etawah who was to act as the foreman in the jury. The name of the Tahsildar not mentioned, but the order early implied that, whoever was the Tahsildar of Etawah at that time was act as the foreman. The appointment of the jury had taken place under provisions of Section 138, Criminal Procedure Code, after the objection had appeared and claimed the right to a verdict of the jury u/s 135, Criminal Procedure Code,

3. After a verdict of the majority of the jurors finding that the order, of the Magistrate was reasonable and proper as originally made, the Magistrate is bound, u/s 139, Criminal Procedure Code, to confirm his initial order. Section 139, Criminal Procedure Code, does not require any finding to be given by the Magiatrate after a verdict of the majority of jurors. The claim for if verdict of the jury is provided for by Section 135, Criminal Procedure Code, and the procedure consequent upon such a claim is found u/s 138, Criminal Procedure Code, which runs as follow:

138(1) On receiving an application, u/s 135 to appoint a jury, the Magistrate shall-

(a) forthwith appoint a jury consisting of an uneven number persons not less than five, of whom the foreman and one half of the remaining members shall be nominated by such Magistrate, and the other members by the applicant;

(b) s