ORDER M.H. Beg, J. - This is a criminal reference made by an Additional District Magistrate of Etawah after hearing an application in revision u/s 435, Criminal Procedure Code, preferred by six residents of village Lohia Bahadurpur, against the order of the Sub Divisional Magistrate, Etawah directing them to remove a wall constructed by them, passed u/s 133, Criminal Procedure Code, on 17 7. 1964:, which was confirmed on 30 10. 1964. The learned Additional District Magistrate came to the conclusion that, although the order directing removal of obstruction from a public path in village Lohia Kalan, was justified on merits, yet the procedure adopted in passing that order suffer from such grave irregularities that the order must be set aside. In. hi recommendation to this Court, the learned Additional District Magistrate has pointed out the following irregularities: firstly, the learned Additional District Magistrate thought that the mandatory provisions of Section 139-A, Criminal Procedure Code, had been overlooked inasmuch as the Sub Divisional Magistrate had not passed any order recording a finding that the public path existed at all; and, secondly, the learned Additional District Magistrate pointed out that, although the Tahsildar, Etawah, had been appointed the foreman of the jury, the report to him was submitted by the Naib Tahsildar, who had acted as the fore-man of theory. The learned Additional District Magistrate thought that there was some unwarranted delegation of its duties by the Tahsildar, Etawah, on the Naib Tahsildar. These are the only two irregularities which were noticed in the reference order. 2. I have gone through the record of the case which shows that the Sub Divisional Magistrate had examined to me evidence put forward before him before passing the conditional order u/s i33, Criminal Procedure Code, on 9.6.1964, and then he had subjected that six residents against whom the order was sought, to appear before him and show cause if they subjected to the order of removal of the wall. On 17. 7. 1964, the learned Magistrate had, after hearing the two sides, clarified his order of 9.6.1964 and given some specifications of the wall which constituted the obstruction on the, public path On 17. 7. 1964, the learned Sub Divisional Magistrate had also, by means of a separate order, appointed a jury of five persons who where to visit the site and return their verdict by 12. 8. 7. 1964, the learned Sub Divisional Magistrate had also, by means of a separate order, appointed a jury of five persons who where to visit the site and return their verdict by 12. 8. 1964 on the question whether the path running from east to west, situated in village Lohia Kalan on the north of Matadin's (sic)use, was a public path and whether there was an obstruction of this path. The last, of the five members of the (sic) appointed was the Tahsildar of Etawah who was to act as the foreman in the jury. The name of the Tahsildar not mentioned, but the order early implied that, whoever was the Tahsildar of Etawah at that time was act as the foreman. The appointment of the jury had taken place under provisions of Section 138, Criminal Procedure Code, after the objection had appeared and claimed the right to a verdict of the jury u/s 135, Criminal Procedure Code, 3. After a verdict of the majority of the jurors finding that the order, of the Magistrate was reasonable and proper as originally made, the Magistrate is bound, u/s 139, Criminal Procedure Code, to confirm his initial order. Section 139, Criminal Procedure Code, does not require any finding to be given by the Magiatrate after a verdict of the majority of jurors. The claim for if verdict of the jury is provided for by Section 135, Criminal Procedure Code, and the procedure consequent upon such a claim is found u/s 138, Criminal Procedure Code, which runs as follow: 138(1) On receiving an application, u/s 135 to appoint a jury, the Magistrate shall- (a) forthwith appoint a jury consisting of an uneven number persons not less than five, of whom the foreman and one half of the remaining members shall be nominated by such Magistrate, and the other members by the applicant; (b) summon such foreman and members to attend at such place and time as the Magistrate thinks fit; and (c) fix a time within which they are to return their verdict. (2) The time so fixed may, for. good, cause shown, be extended by the Magistrate. But, Section 139 A (l), Criminal Procedure Code, lays down that the-learned Magistrate shall enquire into the denial of the existence of the public right before proceeding u/s 138, Criminal Procedure Code. (2) The time so fixed may, for. good, cause shown, be extended by the Magistrate. But, Section 139 A (l), Criminal Procedure Code, lays down that the-learned Magistrate shall enquire into the denial of the existence of the public right before proceeding u/s 138, Criminal Procedure Code. The object of such an enquiry is that, if the Magistrate finds that there is reliable evidence in support of the denial he should not waste further time over the matter and stay proceedings until the question has been decided by a competent civil court. Similarly, in cases where the objector claims no right to a jury but appears and wants to show cause against the initial order, the learned Magistrate is bound to take evidence as hr a summons case in support of the denial and record a finding upon that evidence. The finding must show whether the Magistrate was or was not satisfied that bis initial order was reasonable. It is only if the Magistrate is of opinion that the initial order is correct that it has to be made absolute u/s 137, Criminal Procedure Code; In the present case, the proceedings were taken u/s 138, Criminal Procedure Code, and, therefore, no question of an enquiry u/s 137, Criminal Procedure Code, arose. The question, however, is whether an enquiry and, if so, what kind of enquiry, is incumbent upon the Magistrate in view of Section 139A(1) Criminal Procedure Code, before proeeding u/s 137, Criminal Procedure Code, or u/s 138, Criminal Procedure Code. 4. It is apparent from a perusal of Section 139A (1), Code of Criminal Procedure, that the Magistrate must question the persons who appear in response to the notices to show cause in order to ascertain whether there is denial in respect of the public right of way. Apparently, the enquiry u/s 139A (1), Code of Criminal Procedure, is of a summary nature and it is open to the Magistrate conducting the proceedings to allow witnesses to be examined and cross examined. It was held in Mst. Chunni v. Emperor (1) (1938 AWR 040) that where the Magistrate has started enquiry u/s 137, Code of Criminal Procedure, without any initial or summary enquiry provided by Section 139A(1), Code of Criminal Procedure, the proceedings were liable to be set aside. It was held in Mst. Chunni v. Emperor (1) (1938 AWR 040) that where the Magistrate has started enquiry u/s 137, Code of Criminal Procedure, without any initial or summary enquiry provided by Section 139A(1), Code of Criminal Procedure, the proceedings were liable to be set aside. It is also evident from Section 139A(2), Code of Criminal Procedure, that the Magistrate can take evidence in support, of the denial of the public right, and, indeed, if there is reliable evidence to support the denial, he is bound to take such evidence and to stay proceedings until the existence of the right has been adjudicated upon by a competent civil court. 5. It appears that the object of this preliminary or initial enquiry u/s 139A, Code of Criminal Procedure, before the Magistrate adopts either the procedure u/s 137, Code of Criminal Procedure, or Section 138, Code of Criminal Procedure, is to ascertain whether he should proceed further in the matter. It was pointed out by Wanchoo, J. in Mohd. Ayub and Others Vs. State, AIR 1952 All 215 : Section 139 A was introduced in the Code of Criminal Procedure by the Amending Act of 1923. It was introduced with the object that questions of title in relation to rights of way and the like should not be finally decided by the Magistrate but that the Magistrate must stay proceedings, it he is satisfied that the question has been raised bona fide. This object must be borne in mind in interpreting this section, and. unless the words used clearly show that a person must deny completely the existence of public right in respect of the way or place before the Magistrate would stay the proceedings there is no reason to whittle down the object with which the section was introduced, namely, that questions of title should not be decided by; Magistrates, but should be decided by a competent civil court. 6. If the object of Section 139A, Code of Criminal Procedure, is kept in mind, the nature of the enquiry contemplated by it will become clear. It is not to be a duplication of any trial or inquiry u/s 137, Code of Criminal Procedure. 6. If the object of Section 139A, Code of Criminal Procedure, is kept in mind, the nature of the enquiry contemplated by it will become clear. It is not to be a duplication of any trial or inquiry u/s 137, Code of Criminal Procedure. The scheme of the proceedings under Chapter X, Code of Criminal Procedure, is that the Magistrate concerned may, after receiving a police report or on some other credible information or after taking some evidence, if he considers evidence at this stage necessary at all, pass a conditional order for removal of the nuisance or obstruction. At this stage, action is taken on one sided representations and whatever opinion is formed on these representations is purely tentative. If the person against whom the conditional order is directed appears in response to the conditional order and notice to show cause, the Magistrate must undertake an enquiry u/s 139A, Code of Criminal Procedure, and decide whether further time should be given to the case or the evidence is of a nature which merits adjudication by the civil court. It is after arriving at a con elusion on this matter that the question of taking proceedings under either Sec 137 or 138, Code of Criminal Procedure, arises at all. 7. In the present case, the Sub Divisional Magistrate has certainly overlooked the need for this initial enquiry u/s 139A, Code of Criminal Procedure. There is no thing upon the record which indicate that he conducted such an enquiry. The learned Magistrate acted rather mechanically, and, upon a claim have been made that the issue be tried by jury, the learned Magistrate, almost mechanically passed an order u/s 138, Code of Criminal Procedure, appointing the jury Probably the learned Magistrate w misled by the language of Section 138 (1 Code of Criminal Procedure, which provides that, upon receiving application u/s 135, Code of Criminal Procedure the Magistrate shall forthwith appoint a jury. This provision has to be reconciled with the clear words of Section 139A, Code of Criminal Procedure, so that the use of the word "forthwith" does not mean 'without any further steps,' but it only means that the jury should be appointed without delay if, after enquiring into the matter u/s 139A, Code of Criminal Procedure, the learned Magistrate comes to the conclusion that the proceedings should not be stayed. In other words the order passed by the learned Magistrate on 17.7.1964 appointing the jury should have been preceded by a finding that he considered it necessary to proceed u/s 138 Code of Criminal Procedure, and the reasons for doing so ought to have been stated indicating that the enquiry contemplated by Section 139A, Code of Criminal Procedure, had been held, This has certainly not been done by the learned Sub Divisional Magistrate in the present case. 8. The question whether the Naib Tahsildar was at all authorised to make a report or to act as a foreman of the jury should also have engaged the attention of the learned Sub Divisional Magistrate. The order appointing the jury clearly states that the foreman will be the Tahsildar of Etawah. It does not mention the Naib Tahsildar at all. It was suggested, when the matter was argued in this Court, that the Naib Tahsildar must have been acting as the Tahsildar on 17.7.1964. It would have been better if, instead of indicating the office, the learned Sub Divisional Magistrate had mentioned the name of the person or the officer he had appointed to act as the foreman, so that there could be no doubt left as to who was to be the foreman. This is not at all. I find that the report of the Naib Tahsildar, who had acted as the foreman, is in the nature of a judgment interpreting the views given by the members of the jury and stating what the consensus of opinion in the village was. With the report of the Naib Tahsildar were enclosed the opinions of the jurors individually. The opinions of two of the jurors are also not quite clear. The opinions of the other jurors were quite clear and in favour of the objector. It appears, however, from a perusal of their opinions, that they conducted private and independent enquiries and gave the results of their investigations, Section 130(1)(b); Code of Criminal Procedure, shows that the learned Magistrate must summon the foreman and members to attend a place and to fix a time within which they ought to return their verdict. The return of their verdict does not mean the writing of judgments or giving of detailed but confused opinions from which the exact verdict cannot be easily made out. The return of their verdict does not mean the writing of judgments or giving of detailed but confused opinions from which the exact verdict cannot be easily made out. At the time of the giving of the verdict the jurors should be present before the Magistrate. The foreman should communicate the verdict one way of the other clearly, He could communicate to the Magistrate concerned the extent to Which the verdict is one way or the other and also the modifications recommended so that the Magistrate may decide whether the initial order requires modification. If the Magistrate is not quite clear about the meaning of the verdict returned, he should question the jurors and ascertain the meaning of the verdict himself. This means that it is desirable that the Magistrate should fix a time for the verdict of which the foreman and the jurors should be present before him so that any ambiguities in the verdict the clarified. 9. In the present case, the competence of the Naib Tahsildar to function as the foreman of the jury is doubtful and the procedure adopted in the return of the verdict is also confusing and the verdict itself does not appear to be quite clear. The procedure adopted by the Sub Divisional Magistral appears to be sufficiently irregular to make his final order void in the eye of law. 10. I, therefore, accept the reference and quash the final order dated 30.10.1964, as well as the Order dt. 17.7.1964 appointing the jurors. The learned Sub Divisional Magistrate must hold an enquiry of the nature contemplated by Section 139A(1), Code of Criminal Procedure and after coming to the conclusion whether further steps are needed, the learned Magistrate may proceed with the case in accordance with the directions given above.