ORDER S. Padmanabnan, J. 1. On the basis of M. P. 628/84 filed by the respondents, the Sub Divisional Magistrate, Muvattupuzha initiated proceedings under S.133 of the Code of Criminal Procedure (Here-in-after referred to as the 'Code') against the petitioner and passed a conditional order on 22-12-1984 which reads as follows: "Whereas it has been made to appear before that a pathway in Valakom village at Mekkadambukara was closed by putting a gate on the pathway and locked by the counter petitioner and thereby causing obstruction to the exit of the petitioner's house. 1, K.M. Abraham, Sub Divisional Magistrate, Muvattupuzha hereby direct the counter petitioner under S.133(1) Cr. P.C. to remove the obstruction within 7 days on receipt of this order or to appear before this Court at 11 a. m. on 9-1-1985 and show cause why this order should not be made absolute". This order was served on the petitioner who was the counter petitioner therein. He entered appearance and filed objection stating that this is not a public pathway and he has not obstructed any pathway. He also contended that even though the gate put up by him was in his private property, he was permitting vehicular traffic by opening his gate whenever found necessary for others. It was also his case that there is another pathway outside the boundary on his property. 2. After making a local inspection the Magistrate on 9-1-1985 passed an order purporting to be under S.142 of the Code to the following effect ; "Whereas the enquiry into the conditional order issued by me on the day of 22-12-1984 is pending, and it has been made to appear to me that the nuisance mentioned in the said order is attended with such imminent injury of a serious kind to the public as to render necessary immediate measures to prevent such injury, I do hereby, under S.142 of the Code of Criminal Procedure. 1973 direct and enjoin you forthwith to open the pathway referred to in the conditional order by opening the gate permanently, before 10 a. m. tomorrow morning i. e-,. 10-1-1985. If the said order is not obeyed the gate shall be opened and the structure causing obstruction removed from the premises". 3. This order was affixed at the residence of the petitioner on the night of 9-1-1985 itself. 10-1-1985. If the said order is not obeyed the gate shall be opened and the structure causing obstruction removed from the premises". 3. This order was affixed at the residence of the petitioner on the night of 9-1-1985 itself. Next clay at the instance of the Sub Divisional Magistrate the gate and its pillars were physically dismantled and removed. 4. Against the order dated 9-1-1985 the petitioner filed Crl. R.P. 4/85 before the Sessions Judge, Ernakulam. The Sessions Judge by order dated 28-2-1585 found that the action of the Sub Divisional Magistrate was not proper. Yet the Sessions Judge refused to interfere with the actions saying "In the circumstances I feel no purpose will be served by setting aside the order under revision, which has already been carried out. So both the parties are directed to keep statusquo as on the date of filing the revision, namely, 14-4-1985 till M. P. 628/84 is: finally disposed of by the court below". 5. Under these circumstances the petitioner approached this Court with this petition under S.482 of the Code seeking to set aside the orders of the Sub-Divisional Magistrate. 6. The State was not made a party to this petition. But the Director of Public Prosecutions, took notice of the case and argued his part. 7. An Executive Magistrate could take action under S.133 of the Code regarding a pathway only if he considers on receiving a police report or other information and on taking such evidence as he thinks fit that any unlawful obstruction or nuisance should be removed from, anyway which is or may be lawfully used, by the public. This provision is not intended to settle private disputes. What is sought to be prevented is public nuisance. The Magistrate is entitled to initiate action and pass a preliminary order only on satisfaction that there is such a public nuisance in the sense that obstruction has been created to any way, which is or may be lawfully used by the public. This is by way of a public duty cast on the Magistrate and the power could be exercised only in relation to a way which is or may be lawfully used by the public. - 8. This is by way of a public duty cast on the Magistrate and the power could be exercised only in relation to a way which is or may be lawfully used by the public. - 8. The conditional order passed by the Magistrate only shows that it was made to appear before him that a pathway was locked up and thereby obstruction was caused to the exit of the petitioner's house. He has not stated that he had the requisite satisfaction that any unlawful obstruction or nuisance was caused to any way which is or may be used by public. If so the Magistrate had no jurisdiction to initiate action under S.133 and the conditional order itself is beyond his authority and as such illegal. 9. S.142 of the code is intended, to meet an emergent situation for the purpose of preventing imminent danger or injury of a serious kind to the public. Even though in the order dated 9-1-1985 the Magistrate has mentioned about the imminent injury of a serious kind to the public, the reasons or the basis for such satisfaction are not there in the order When the conditional order itself shows that what is involved is only exit to the house of the petitioners before the Magistrate, it is clear that it is only a dispute between petitioner and respondents. That could only be a private dispute for which S.133 cannot be applied and no imminent injury of a serious nature to the public could come in. The enquiry mentioned in the order dated 9-1-1985 seems to be only a local inspection made by the Magistrate. It is not known how a local inspection was made on the date fixed for showing cause and before starting an enquiry under S.137 or 138. This is something which may not take place in the normal course. The complaint of the Magistrate seems to be that his order to keep open the way was not obeyed and the gate was closed arid locked. This cannot in any way create imminent injury of a serious kind to the public requiring action under S.142 of the Code. Evidently the action of the Magistrate in this respect was also unauthorised. 10. It has to be remembered that the proceeding under S.133 of the code is pending consideration before the Magistrate himself. This cannot in any way create imminent injury of a serious kind to the public requiring action under S.142 of the Code. Evidently the action of the Magistrate in this respect was also unauthorised. 10. It has to be remembered that the proceeding under S.133 of the code is pending consideration before the Magistrate himself. The existence of any public right was denied by the petitioner and before passing the final order, the Magistrate has implemented his order dated 9-1-1985 by removing and dismantling the gate and its pillars physically That is a further illegality committed by the Magistrate especially when he has not passed final orders The date fixed in the conditional order to appear and show cause was 11 a.m. on 9-1-1985. On that day itself the order under S.142 was passed to open the gate permanently before 10 a.m, on 10-1-1985 and on 10-1-1985 itself the Magistrate not only opened the gate but physically removed the gate and its pillars. This is also not a normal procedure. Therefore, I am of opinion that the action of the Magistrate was not only unauthorised but illegal also. 11. The learned Director of Public Prosecutions was not able to support the action of the Magistrate in the above circumstances. The Crl. M. C. is therefore allowed and the entire proceedings of the Sub Divisional Magistrate are hereby quashed. I was told that the parties have filed civil suits and they are pending before competent courts. If so advised the petitioner will be entitled to claim compensation from the State, if not from the Magistrate himself, for the illegal actions of the Sub Divisional Magistrate.