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Judgment
Das, J.—The petitioners complain against an order passed by a Magistrate of Patna requiring them to remove an obstruction on a public road, which is survey plot No. 222. The petitioners deny that survey plot No. 222 is a public road and claim it as their Sahana. In proceedings u/s 133, Criminal Procedure Code, it is necessary to establish, first, that the act complained of is a nuisance or an obstruction, and secondly, that it was committed in a public place which may lawfully be used by the public. It is admitted that a building has been put up on survey plot No. 222. So far as the second question is concerned, the learned Magistrate has considered the evidence bearing on the point and has come to the conclusion that plot No. 222 is a public pathway which is or may be lawfully used by the public.
It is urged, however, that the claim of the petitioners is a bona fide claim and that such a claim ousts the jurisdiction of Criminal Courts. But the question of bona fides of a claim is a question of fact which has to be enquired into like any other question of fact, see Nundo Gopal Chatterjee v. Kusum Kumar Banerjee 1 C.L.J. 434 : 2 Cr.L.J. 349. The learned Magistrate has enquired into the question of bona fides and has recorded a finding adverse to the petitioners. In my opinion, there is no substance in the application, which must be refused.