Iqbal Ahmad, J.
1. This is a reference made by the learned Additional Sessions Judge of Meerut under Section 438, Criminal Procedure Code, recommending that the order of a Magistrate of the First Class, dated the 1st of November 1926, by which he made absolute a conditional order under Section 133, Criminal Procedure Code, directing the removal of a portion of a certain chabutra be set aside, and the case be sent back for trial according to law.
2. The case was started on the complaint of the opposite party. The allegation in the complaint was that the petitioners had built the chabutra complained of and that the chabutra obstructed a certain pathway and caused inconvenience to people using the pathway and might lead to the falling of the neighbouring house during the monsoons.
3. The complaint was filed on the 8th of May 1926, and it was not until the 23rd of September 1926, that an enquiry into the case commenced. On that date the petitioners appeared and denied that they had blocked the way as alleged by the complainants. The case was then taken up on the 30th of October 1926, and on that day the complainants did not offer to produce any evidence. The petitioners thereupon stated that they had no evidence to produce either, and it appears that the learned Magistrate was asked to inspect the locality and then to decide the case. An inspection was made by the learned Magistrate on the 31st of October 1926, and, on the day following the learned Magistrate passed the order now in question.
4. The petitioners having shown cause against the conditional order made under Section 133, Criminal Procedure Code, the learned Magistrate was bound to follow the procedure laid down by Section 137(1) of the Criminal Procedure Code. In other words, the learned Magistrate was bound to take evidence in the matter as in a summons case. This the learned Magistrate did not do. The learned Additional Sessions Judge is perfectly right in observing, that the failure of the Magistrate to follow the procedure enjoined by Section 137(1), Criminal Procedure Code, vitiates his order, and is not a mere irregularity of the nature contemplated by Section 537(a) of the Criminal Procedure Code.
5. It has been pointed out in numerous cases that Section 537, Criminal Procedure Code, applies only to mere errors of procedure arising out of mere inadvertence, and not to substantive errors of law,' and that section does not apply to cases of disregard or disobedience of mandatory provisions of the Code. The section has not the effect of curing material irregularities and absolute illegalities:
The errors which can be cured by the section are formal defects of procedure and not substantive errors of law:
vide Subrahmania Iyer v. King-Emperor  25 Mad. 61. It has been held in the case of Momuddin v. Emperor  2 Pat. L.T. 455 that if a Magistrate makes use of knowledge derived from a local inspection without affording the accused an opportunity to cross-examine or to explain the points against him, he acts with material irregularity sufficient to vitiate the trial. The provisions of Section 137(1), Criminal Procedure Code, are imperative and the failure of the Magistrate to follow the same vitiates the entire proceedings.
6. But the matter does not stop there. The learned Magistrate in disregard of the provisions of Section 539 B, Criminal Procedure Code, did not record a memorandum of any relevant facts observed by him at the time of inspection nor did he put on the record any such memorandum. In this respect the learned Magistrate was clearly wrong. The learned Magistrate in his explanation says that he did prepare rough pencil notes at the time of inspection which he destroyed after writing his order. I can discover no justification for this procedure of the learned Magistrate and I must say that it is an action that I can hardly expect from a Magistrate of the First Class. A local inspection by a Magistrate is only permitted by Section 539 B, Criminal Procedure Code, for the purpose of properly appreciating the evidence in the case and cannot take the place of evidence itself. As was pointed out in the case of Ram Sahai Singh v. Dwarka Singh  1 P.L.T. 569
a local inspection by a Magistrate must be held sparingly and only for the purpose of elucidating and understanding the evidence in the case and it should never be substituted for evidence in the case. The party against whom the result of the local inspection is used, is greatly prejudiced and is put to an irreparable disadvantage in not being able to remove the wrong impression from the mind of the Magistrate, by cross-examining him.
7. A Magistrate cannot make an order under Section 133, Criminal Procedure Code, absolute without recording evidence and simply on the basis of a local inspection made by him: vide, Ismail v. Bunda A.I.R. 1922 All. 265 and Raimohan Karmokar v. Emperor  44 Cal. 61,
8. For the reasons given above I set aside the order of the learned Magistrate, dated the 1st of November 1926, and order that the case be sent to the learned District Magistrate of Muzaffarnagar with a direction that either he should try the case himself or send the case for trial to some Magistrate other than the Magistrate who passed the order dated the 1st of November 1926, for trial according to law.