Ghose and Gordon, JJ.@mdashAfter hearing both sides in this matter, we think that the rule should be made absolute upon both the grounds on which if, was granted.
2. The complaint was one for illegal obstruction of what the complainant described to be at public thoroughfare. The Magistrate, before whom the said complaint was instituted, after certain preliminary enquiries which he had made, was of opinion that the alleged way was not a public thoroughfare; and he accordingly refused to take action u/s 133 of the Code of Criminal Procedure. The complainant then went up to the Sessions Judge; and that Officer was of opinion that the Magistrate was bound to have proceeded with the case; and he directed that a further enquiry be made u/s 133, and the following sections of the Code of Criminal Procedure. The Magistrate acted upon this order, as he was bound to do, made a conditional order u/s 133, and called upon the petitioners before us to show cause why the obstruction complained of should not be removed.
3. They appeared and showed cause; but, as it would appear upon the record, they offered no evidence; and thereupon the Magistrate, without taking any evidence in support of the complaint, made the conditional order absolute u/s 137 of the Code of Criminal Procedure.
4. Now, it appears to us that the Sessions Judge''s order directing a further enquiry in this case was ultra vires. We suppose he meant to make this order u/s 437 of the Code of [398] Criminal Procedure, there being no other section in the Code under which an order for further enquiry can be made. On referring to that section, however, and reading it by the light of the sections occurring in Chapter XVI which ends with Section 203 of the Code, it will be found that it is only in the case of an offence that a superior Court is entitled to direct a further enquiry. The act of the petitioners complained of was not an offence; and in regard to such a complaint we do not think the provisions of Section 437 of the Code can have any application. In this view of the matter, it seems to us that the subsequent order of the Magistrate making his conditional order absolute must fall through, the proceedings having been taken upon the authority of the order of the Sessions Judge, which we hold to be illegal. But apart from this consideration we are of opinion that, when the petitioners appeared before the Magistrate and showed cause, he was not competent to make his conditional order absolute (sic) taking evidence upon the matter of the complaint before him u/s 137 of the Code. That section says: "If he appears and shews cause against the order, the Magistrate shall take evidence in the matter. If the Magistrate is satisfied that the order is not reasonable and proper, no further proceedings shall be taken in the case. If the Magistrate is not so satisfied the order shall be made absolute." When the section says "the Magistrate shall take evidence in the matter," we read it to mean that he shall take evidence upon the matter of the complaint, and not simply the evidence which the opposite party might offer. It seems to us that, before the Magistrate in this ease could make his conditional order absolute, he was bound to have taken evidence in the presence of the opposite party, and satisfied himself that the alleged way was a public thoroughfare; that there had been an unlawful obstruction thereof; and that his conditional order was reasonable and proper. The report, or other information which the Magistrate had received, or such evidence as he might have taken before making the conditional order, is no evidence against the opposite party, the proceeding u/s 133 being entirely ex parte.
5. Upon these grounds we make the rule absolute.
