1. In this case the Magistrate gave notice to the Petitioners under Section 147 of the Criminal Procedure Code. When the case came on for hearing objection was taken that the case did not fall under Section 147 of the Criminal Procedure Code. To this it was answered that the case even if it did not fall under Section 147 of the Criminal Procedure Code did fall under Section 145, Criminal Procedure Code. The Magistrate passed the following order:
It seems to me that the Court has jurisdiction to try the case and evidence of possession has to be gone into.' We cannot gather from the order that the Magistrate actually decided that the case fell under Section 145 of the Criminal Procedure Code and gave notice to the parties that he intended to deal with it tinder that section. He, however, eventually passed an order purporting to be under Section 145 of the Criminal Procedure Code. Strictly speaking the Magistrate acted without jurisdiction in passing an order under Section 145 of the Criminal Procedure Code without first making an order under the first paragraph of that section. If, however, it appeared that the Magistrate after hearing the preliminary argument told the parties he intended to proceed under Section 145 of the Criminal Procedure Code and that they should if they wished put in the written statements referred to in the first paragraph of Section 145 of the Criminal Procedure Code, we might perhaps not have been prepared to say that this was a lit case for our interference. But as even this was not done we think that the order was passed without jurisdiction.
2. We therefore, set it aside.