JUDGMENT Rampini and Handey, JJ. - This is a Rule calling upon the Magistrate of the district of Birbhum to shew cause why the conviction and sentence in the case of the Applicant Sundar Majhi should not be set aside on the ground that Mr. Ahmad, under whose authority the boundary pillars had been set up, was not an arbitrator within the definition of Section 21, Clause (6) of the Indian Penal Code. The Petitioner has been convicted and sentenced u/s 434 of the Code for having destroyed a landmark fixed by the authority of a public servant. Mr. Roy, who obtained this Rule on his behalf, contends that the conviction is bad, because, although Mr. Ahmad who put up the boundary pillar was a public servant and Collector, yet he did not put up the pillar as such, but in his capacity of arbitrator, or person to whom a certain matter, namely, the dispute u/s 145 of the Code of Criminal Procedure, had been referred by the parties themselves and not by the Court. 2. Mr. Hill on behalf of the Crown shews cause against the Rule; but after looking into the orders passed in the case, we think that the ground upon which the Rule was obtained was a good ground and that the Rule must be made, absolute, We see from the order of the Sub-divisional Magistrate of Rampur Bat on whose file the Section 145 case was pending, that Mr. Ahmad was not appointed by him to be arbitrator, nor was any matter referred to him for decision. There was an application before the Sub-divisional Magistrate to the effect that the parties were willing to refer the question of the lands in dispute to Mr. Ahmad; and that being so and as there was no further likelihood of breach of the peace, the proceedings u/s 145, Code of Criminal Procedure, were stayed. In these circumstances it appears to us that Mr. Ahmad was not a public officer authorized to fix the boundary pillars, but was a private person to whom the parties chose to refer the dispute between them for decision. 3. Mr. In these circumstances it appears to us that Mr. Ahmad was not a public officer authorized to fix the boundary pillars, but was a private person to whom the parties chose to refer the dispute between them for decision. 3. Mr. Hill relies on the last sentence in the order of the Sub-divisional Magistrate, which is as follows:--"Such crops as may have been already cut by the Court's order, will be apportioned to the parties by the arbitrator." We do not think, however, that the Sub-divisional Officer meant by this to appoint Mr. Ahmad to apportion the crops. It was in our opinion a mere declaration of what he thought Mr. Ahmad should do in disposing of the case. 4. Furthermore, we do not think that Mr. Ahmad was authorized to put up the boundary pillars. If he did put them up, he did not do so Lin his capacity of public servant within the meaning of Section 434, Indian Penal Code. 5. The Rule is therefore made absolute and the conviction and sentence in the case of the Applicant set aside. The fine if paid must be refunded.