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Judgment
Lodge, J.—This is a reference under the provisions of S. 438, Criminal P. C., by the Additional Sessions Judge of Barisal. Proceedings under S. 133, Criminal P. C., were drawn up at the instance of the first party against the second party with respect to two plots of land described as Cadastral Survey Dags Nos. 1193 and 1194. It was alleged that there was a public khal running over these two plots and that the public khal had been obstructed by the second party. The Magistrate drew up proceedings under S. 133, Criminal P. C., and served notice upon the second party. The second party appeared and denied the existence of any public right in respect of the khal in question. The learned Magistrate then held an enquiry under S. 139A, Criminal P. C., and recorded a finding that there was no reliable evidence in support of such denial. He directed that the parties should proceed under S. 137, Criminal P. C. The learned Sessions Judge recommends that the order of the Magistrate be set aside on the ground that there is reliable evidence in support of the denial.
In my opinion it is the function of the Magistrate to make an enquiry and to decide whether there is reliable evidence or not and when the Magistrate has in fact made such enquiry and has in fact come to the conclusion that there is no reliable evidence in support of the denial it is not for us to interfere. In my opinion, this reference should be rejected. Let the records be sent down as early as possible.
Derbyshire, C. J.
I agree.