ORDER Lodge, J. - This Rule arises out of proceedings under S. 133, Criminal P.C. 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 S. 133, Criminal P.C. 2. 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. 3. On 25-6-1945, 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 S. 139-A of the Code. The case was adjourned from time to time until on 1-4-1946, 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 S. 139-A, Criminal P.C. 4. On the same day, he examined witnesses for the second party and adjourned the case to 2-4-1946 and on the next day the learned Magistrate examined one witness for the first party and adjourned the case to 5-4-1946 for argument. On 5-4-1946, the learned Magistrate heard argument and adjourned the matter to 26-4-1946, for orders. On 26-4-1946, the following order was-passed: Read out and delivered judgment. The order dated 8-6-1945 is made absolute. Issue notice on the second party to remove obstruction by 26-5-1946 failing which they will be prosecuted under S. 188, Penal Code. 5. On behalf of the second party, it has been argued that the learned Magistrate has merely held an enquiry under S. 139-A, Criminal P.C. and has not thereafter proceeded under S. 137 or under S. 138 of that Code and consequently he was not entitled to pass final orders in the matter. 6. On behalf of the Crown it has been argued that in fact the learned Magistrate has proceeded under S. 137, and he has done substantial justice in this case and consequently this Court should not interfere. 7. 6. On behalf of the Crown it has been argued that in fact the learned Magistrate has proceeded under S. 137, and he has done substantial justice in this case and consequently this Court should not interfere. 7. In my opinion, the argument of the second party is well founded. It is perfectly clear from the orders to which I have referred above, that the learned Magistrate was calling upon the parties to adduce evidence merely for the purpose of enquiry under S. 139-A. 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. 8. The Code makes it perfectly clear that after holding an enquiry under S. 139-A and after holding that there is no evidence in support of the denial of the existence of a public right, the Magistrate shall proceed under S. 137 or S. 138 of the Code. He is not entitled merely as a result of the enquiry under S. 139-A to pass final orders in the case. 9. 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 S. 139-A(2), Criminal P.C. holding that there was no evidence in support of the denial, and the learned Magistrate will then proceed either under S. 137 or under S. 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.