JUDGMENT Lodge, J. - This Rule arises out of proceedings under sec. 133 of the Code of Criminal Procedure and has been obtained by the second party, to those proceedings. The first party asserted that there existed a public right of way over Plot No. 155 of Mouza Tilardi and that the second party had obstructed this right of way, and they accordingly prayed for an order under sec. 133 of the Code of Criminal Procedure. On receipt of this petition, the learned Magistrate directed the second party to remove the obstruction and the nuisance, or to show cause why they should not be compelled to do so. 2. On the 25th June, 1945, the second party filed a written statement denying the existence of any public right of way over Plot No. 155 of Tilardi Mouza, and the learned Magistrate directed them to produce evidence under sec. 139A of the Code. The case was adjourned from time to time until on the 1st April, 1946, the following order was passed: Second party denies the existence of the path and challenges correctness of the Settlement Record. I think on the face of the Settlement Record this is a mere plea, so I proceed to record the evidence of second party in accordance with sec. 139-A of the Code of Criminal Procedure. 3. On the same day he examined witnesses for the second party and adjourned the case to 2nd April, 1946, and on the next day the learned Magistrate examined one witness for the first party and adjourned the case to 5th April, 1946, for argument. On the 5th April, 1946, the learned Magistrate heard argument and adjourned the matter to the 26th April, 1946, for orders. On the 26th April, 1946, the following order was passed: Read out and delivered judgment; The order dated the 8th June, 1945, is made absolute. Issue notice on the second party to remove obstruction by 26-5-46, failing which they will foe prosecuted under sec. 188 of the Indian Penal Code. 4. On behalf of the second party it has been argued that the learned Magistrate has merely held an enquiry under sec. 139A of the Criminal Procedure Code and has not thereafter proceeded under sec. 137 or under sec. 138 of that Code and consequently he was not entitled to pass final orders in the matter. 5. 4. On behalf of the second party it has been argued that the learned Magistrate has merely held an enquiry under sec. 139A of the Criminal Procedure Code and has not thereafter proceeded under sec. 137 or under sec. 138 of that Code and consequently he was not entitled to pass final orders in the matter. 5. On behalf of the Crown it has been argued that in fact the learned Magistrate has proceeded under sec. 137, and he has done substantial justice in this case and consequently this Court should not interfere. 6. In my opinion, the argument of the second party is well founded. It is perfectly clear from the orders to winch I have referred above, that the learned Magistrate was calling upon the parties to adduce evidence merely for the purpose of enquiry under sec. 139A. He did not give the result of such enquiry before passing final orders in the case, and therefore did not allow the second party an opportunity of deciding whether they would apply for a jury or would have evidence, recorded by the learned Magistrate. 7. The Code makes it perfectly clear that after holding an enquiry under sec. 139A and holding that there is no evidence in support of the denial of the existence of a public right, the Magistrate shall proceed under sec. 137 or sec. 138 of the Code. He is not entitled merely as a result of the enquiry under sec. 139A to pass final orders in the case. 8. This Rule must be made absolute. The case must be remanded to the lower Court. The order of the learned Magistrate will be taken to be an order under sec. 139A (2) of the Code of Criminal Procedure holding that there was no evidence in support of the denial, and the learned. Magistrate will then proceed either under sec. 137 or under sec. 138 of the Code according as the second party does or does not apply for the appointment of the jury. The Rule is made absolute accordingly.