1. On 5th February 1917 information was laid under Section 145 of the Cr PC by the Sub-Inspector of Police, Deolapar, in the Court of the Sub-divisional Magistrate, Ramtek, to the effect that there was a dispute regarding three fields situated at Mauza Karwahi between Madho Prasad and Ramnarayanlal on the one hand and Jagansi Gond on the other and that the said dispute was likely to cause a breach of the peace. The Sub-Divisional Magistrate directed the parties to appear before him on 15th February 1917 at Deolapar and to put in written statements of their respective claims as to actual possession of the property in dispute and as the case appeared to be one of some emergency, the Magistrate attached the three fields pending decision of the case. On 15th February 1917 the case was taken up, not at Deolapar, but at Chorbaoli, a village some nine miles from Deolapar. It was called at 3 p.m The Sub-Divisional Magistrate in his order states that he had issued orders to the Sub-Inspector the previous day that case would be heard at Chorbaoli and as Madho Prasad and Ramnarayanlal were absent when the case was called, the Magistrate proceeded ex parte and passed an order stating that finding Jagansi was in possession of the property in dispute, he should retain possession until evicted therefrom in due course of law.
2. Against that order, the present application for revision is filed by Madho Prasad and Ramnarayanlal.
3. I am satisfied that the Magistrate's order which is not on record said to have been issued on 14th to the Sub-Inspector telling him to inform the present applicants that they should attend at Chorbaoli in place of Deolapar, was not served on them in time to allow them to be present. They had engaged Mr. Parakh, Pleader, to represent them in the case. Mr. Parakh, who is present in the Court, tells me that he reached Deolapar with his clients at 8 or 9 a.m on the morning of 15th February. He put up with the Sub-Inspector there, but was told nothing as regards the change in the place of hearing until about 4 o'clock in the afternoon when apparently on a chit received from the Sub-Divisional Magistrate's reader the Sub Inspector told the pleader that the Court was at Chorbaoli that day. Mr. Parakh, pleader, states that on his way back he inquired at Chorbaoli and was told that the case had been disposed of. The Sub-Divisional Magistrate at that time was absent from the bungalow. This was on the evening of the 15th. There is no reason to doubt Mr. Parakh's word.
4. Whether it is the fault of the Sub-Divisional Magistrate's clerk or of the Sub-Inspector that information did not reach the applicants in time, it is not my business to decide, but I am clearly of opinion that it was not possible for the two applicants to attend the Court at Chorbaoli at the time the case was called. Therefore if the Sub-Divisional Magistrate's order is open to revision, I have no hesitation in setting it aside. Counsel for Jagansi argues that this Court cannot interfere with the order in revision. I am referred to Section 435 of the Cr PC, and to Murat Singh v. Paika Bai [1904] 17 C.P.L.R 133 , 1 Cr. L.J 877 in support if this proposition. It seems to me that this Court cannot under S. 435 ordinarily interfere with orders passed under Ch. 12 of the Cr PC, but where an order purporting to be under S. 145 exceeds the powers given by the section, this Court can interfere. Irregular and illegal proceedings under Ch. 12 are subject to the revisional jurisdiction of this Court. See Pandurang Govind, In re [1900] 24 Bom. 527, Pandurang Govind Pujari, In re [1901] 25 Bom. 179, Dewan Chand v. Queen Empress [1899] 2 P.R 1899 Cr. (F.B), Dhani Ram v. Bhola Nath [1902] 23 P.R 1902 Cr and Abdulla Khan v. Gunda (1907) P.R 1907 Cr. , 6 Cr. L.J 113. I hold the proceedings under Section 145 of the Cr PC, are not within jurisdiction unless the procedure prescribed there is strictly adhered to and therefore when a party to the dispute has had no opportunity of appearing and putting in his written statement, this Court can set the proceedings aside.
5. This Court is not entitled to interfere merely because there has been an irregularity in the proceedings or an erroneous decision on a question of fact or law, but it can and will interfere when there has been a material irregularity which has prejudiced a party to the proceedings: Parmessar Singh v. Kailaspati [1916] 17 Cr. L.J 369 , 35 I.C 801. The irregularity here has prevented the applicants from having a fair trial. I do not question the Magistrate's power to proceed ex parte against a party in proceedings under Section 145 of the Cr PC, when that party having due notice of the date fixed for hearing fails, to attend in person or by pleader to put in a written statement of his claim, but in the present case the applicants were not given notice in time that the case would be heard at Chorbaoli and they are entitled to be heard and must be heard before the final order under S. 145 is passel. I set aside the order of the Sub-Divisional Magistrate, dated 15th February 1917 and direct that the case be proceeded with and dealt with according to law. It is pressed here that the case should not be returned to the Court of the Sub Divisional Magistrate, Ramtek, for disposal. Mr. Bourne, as seems clear from para. 4 of the District Magistrate's reply to the notice calling upon him to show cause why the order should not be set aside, has since the disposal of the case made a local inquiry into the question of possession, an inquiry made on the application of Jagansi, the non-applicants, for making a false report in this case to the police. Under these circumstances as the Sub-Divisional Magistrate, Ramtek, must have made up his mind on the question of possession, the case will be now disposed of by such other Magistrate as the District Magistrate may direct.
P.N/R.K
6. Order set aside.