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1. It appears to me that the Deputy Magistrate was mistaken in supposing that he was precluded from taking up this case by reason of the decisions of his predecessors. The question was whether the obstruction complained of had been erected in a public way. On the first occasion, when an application was made to the Magistrate, it seems that no enquiry was instituted, that is, no judicial enquiry; but the Magistrate simply inspected the place, and upon that inspection determined that the way was not a public way, and therefore refused to interfere. Thereupon the complainant went to the Civil Court, and attempted to show that the way was a private one, and that he was specially hindered by the obstruction. In the Civil Court he failed upon the ground that it was a public way, and that he had not made out a case sufficient to entitle him to relief in the Civil Court.
2. In the meantime, while the decision of the Civil Court was under appeal the complainant applied again to the Magistrate upon the strength of the finding of the Civil Court that the way was a public one. The Magistrate then declined to interfere, not absolutely, but upon the ground that the civil suit was still pending, as well as upon the ground that his predecessor had already held that the way was not a public one. Upon the civil proceedings being terminated by the decision of a second appeal to this Court, the petitioner again applied to the present Magistrate. The Magistrate now thinks that, notwithstanding the decision of the Civil Court, he is precluded from interfering, because his predecessor thought that the way was not. a public one. Thus it appears that the petitioner is defeated in the Criminal Court, because the way is not a public one, and in the Civil Court because it is a public way. We think that the Magistrate is bound to make an enquiry notwithstanding the decisions of his predecessors. The last of these two decisions was upon the ground, partly that there were civil proceedings still pending, and partly that there had already been a decision by the Magistrate. The first decision of the Magistrate strictly speaking, was not a decision at all, but simply a dictum on inspection of the place. It is impossible for any Magistrate, without taking evidence, to say whether a road is a public thoroughfare or not.
3. Under the circumstances we think that the rule must be made absolute, and the Magistrate directed to come to a decision whether or not the way is a public one; and, if so, whether the obstruction raised should be removed. The matter of the removal of the obstruction is one entirly in his own discretion.
4. I am of the same opinion. It appears to me that neither on the first, nor on the second, occasion did the two previous Deputy Magistrates hold any judicial enquiry in the matter of the complaint made before them in accordance with the provisions of Section 133 of the Criminal Procedure Code. That being the case, neither the first nor the second order operates as a bar to the Deputy Magistrate enquiring into the complaint upon the present occasion.