PRAN KRISHNA DAS Vs. SHYAM SUNDAR SARKAR

JUDGEMENT

(1.) This is a Reference by the Additional Sessions Judge of Malda, West Dinajpur, recommending that the order passed in proceedings Under Section 133, Criminal P.C. by Sri T. P. Ghose, Magistrate exercising First Class Powers at Balurghat, should be set aside.

(2.) The facts briefly are as follows : Pran Krishna Das filed an application Under Section 133, Criminal P.C. in the Court of the Sub Divisional Magistrate, Balurghat, alleging that the petitioner 'rihyimi Bundar Sarkar had obstructed a public pathway, Upon this application being made, the Magistrate ordered a preliminary enquiry by the police and thereafter he passed a conditional order Under Section 183, Criminal P.C. directing the petitioner to remove the obstruction or to appear before him and move to have the conditional order set aside. When the petitioner appeared before the learned Sub-Divisional Magistrate the learned Magistrate instead of holding any enquiry himself passed a somewhat curious order which I reproduce below :

(3.) Thereafter, the matter was heard by Sri D, Maitra purporting to act Under Section 139a, Criminal P.C. He 'hold that the denial of the existence of public right of way by the petitioner was a mere pretence. this Magistrate passed no further orders but sent his report or decision to the Sub-Divisional Magistrate for orders. The Sub. Divisional Magistrato then passed an order sending the case to Sri T. P. Ghose, Magistrate, First Class, "for favour of disposal according to law" and this learned Magistrate passed the final order holding that there was on obstruction and making the order of the Sub. Divisional Magistrate absolute.