JUDGMENT : 1. This is a reference by the Sessions Judge of Muttra asking this Court to set aside an order purporting to have been passed under Section 133 of the Cr PC, by a First Class Magistrate of that district. The facts as they appear to me from an examination of the record, are that one Churaman, the owner of a corner shop, proceeded to make certain additions to the same, the result of which, according to the Magistrate, has been that whereas previously the tazias carried in procession by Mahomedans in connexion with the Muharram festival had been able to pass through a certain lane on one side of Churaman's shop, they were no longer able to do so in consequence of the new constructions made by Churaman. The order passed has been one requiring Churaman to demolish so much of a certain wall as will leave a sufficient space for tazias to pass along the whole length of the front of his shop. The Sessions Judge is of opinion that the inquiry conducted by the Magistrate prior to passing this order was irregular and that on this ground the order should be set aside. The explanation offered by the Magistrate shows that he himself had some doubts whether the obstruction which Churaman has been ordered to remove was in fact an obstruction situated on any way which may be used by the public, or any public place, or was in reality a construction on land of which Churaman was the owner. 2. There will have to be a finding on this point before any final order under Section 133 of the Cr PC, can be passed. That section empowers a Magistrate to order the removal of an obstruction from any way or from any public place, and before it can be applied there must be a finding that the obstruction in question is situated on a way which may be lawfully used by the public or on a public place, the Magistrate's explanation suggests that he felt he had strong reasons for interfering with Churaman's proceedings, even though it might have been made to appear on inquiry that Churaman had only been building upon his own land. It is possible that further inquiry may show that the case in question was not one for action under Section 133 of the Cr PC, but one to which the provisions of Section 144 of the Cr PC, were applicable. 3. The latter section undoubtedly gives a Magistrate, under certain circumstances, power to direct a person to take certain order with certain property in his possession. I accept the reference of the Sessions Judge, set aside the order complained of and direct that the record be returned to the Magistrate for further inquiry and decision in accordance with law.