1. This is an application to revise an order passed by the Sub-Divisional Magistrate of Tellicherry under Section 145, Criminal Procedure Code, Two rival Jenmis were disputing the right to possession in respect of a tract of forest land, 30 square miles in extent, In February 1919 the Inspector of Police reported to the Magistrate that there was a likelihood of a breach of the peace in respect of the possession of this property. Thereupon he initiated proceedings under Section 145, Criminal Procedure Code. Meanwhile a suit was instituted in the District Munsif's Court in respect of the very same property. An injunction was issued by the District Munsif. In consequence of the issue of this injunction, the Magistrate stayed his hands for some time. Subsequently this injunction was dissolved by the District Judge in August 1919. The Magistrate revived the proceedings under Section 145, Criminal Procedure Code. We are told that there was a fresh report from the Police Inspector informing the Magistrate that there was a likelihood of a breach of the peace. After passing a preliminary order, the Magistrate proceeded to the disputed locality and inspected it. according to the affidavit filed the Magistrate remained in the locality for about 2 hours and travelled over about 11 miles of it. On the strength of this inspection the Magistrate in paragraph 2 of his judgment says: 'That inspection completely satisfied me as to the point in issue, viz., the fact of actual possession of the disputed property. I find that nothing is to be trained by calling on the parties to produce further evidence, the value of which (whether oral or documentary) in a dispute of this kind is very doubtful.' Then he discusses the documentary evidence which was filed in the case, and says in paragraph 6: 'Then very strangely the Idam demised the very same land on othi to Kalliatohathu Kutti Nambiar on 11th June 1918.' Now if the learned Magistrate had taken evidence the petitioners might have bean able to show that there was nothing strange in this second lease to Chathukutti Nambiar. Mr. Grant, who appeared for K.C. Manavedava Raja, informed us that his client transferred his lease to the Nambiar because he was unable to pay the lease amount. Subsequently the Nambiar surrendered the lease to the Idam. The Idam re-granted the lease to Manavedava Raja. He subsequently transferred his newly acquired right to a company known ' The Malabar Trading Company' but is working as its agent. It was because the Magistrate refused to take evidence that he found himself in the strange position he described. Then, in another place, in paragraph 6 of his judgment, the Magistrate says: 'The Idam must have regarded the lease to him as void thereafter.' We are unable to understand where he got this idea from that the lease became void. This again is the result of his shutting out the oral evidence in the case. Under these circum-stances, the question for our decision is whether we have jurisdiction to revise the order of the Magistrate. The learned Counsel for the petitioner has quoted a large number of authorities to show that the refusal to take evidence will amount to a declining to exercise jurisdiction. One of the earliest cases in the Presidency decided by Mr. Justice Wallis, as he then was, is reported in Arumuga Govindan v. Venkatasubbier 17 M.L.J. 535 : 6 Cr. L. 384 : 3 M.L.T. 108. There the learned Judge points out that where a Magistrate did not take evidence himself but acted on the evidence taken by somebody whom he deputed for the purpose, the Magistrate acted without jurisdiction and the High Court had no power to interfere. That decision was followed in Velayuda Kone v. Narayana Kone 31 Ind. Cas.645 : 2 L.W. 1208 : 16 Cri. L.J. 789. In Calcutta the view has been consistently held that where there has been a refusal by a Magistrate to examine witnesses, that would be tantamount to a refusal to exercise jurisdiction. The Magistrate in this case based his conclusion on documents showing the title to the property. As was pointed out by Miller, J., in Pananganti Parthasarathy v. Venkatasawmi Reddi 6 Ind. Cas. 398 : 34 M.p 1138; 8 M.L.T. 104 : (1910) M.W.N. 400 : 11 Cri. L.J. 353 documentary evidence of this description should only be utilized for the purpose of elucidating oral evidence that may be admitted in this case. By. themselves, the documents should not be used for concluding the question as to the possession. We are, therefore, of opinion that the procedure adopted by the Magistrate in declining to receive oral evidence is a matter which can be revised by the High Court. This view is not inconsistent with the decision in Kamal Kutty v. Udayavarma Raja 17 Ind. Cas. 65 : 23 M.L.J. 499 : 12 M.L.T. 439 : (1912) M.W.N. 1154 : 13 Cri. L.J. 753 :36 M.p 275.
2. The Magistrate refers often to the local inspection which he made. As was pointed out in Sahadat Khan v. Taijaddi Sheikh 52 Ind. Cas. 608 : 23 C.W.N. 750 : 20 Cri. L.J. 688 : 46 C.P 1056. a decision as to possession based solely upon local inspection is not what Section 145, Criminal Procedure Code, contemplates. The judicial Committee in Kessowji Issur v. Great Indian Peninsula Railway Company 31 B.p 381 : 9 Bom. L.R. 671 : 11 C.W.N. 721 : 6 C.L.J. 5 : 4 A.L.J. 461 : 17 M.L.J 347 : 2 M.L.T. 435 : 34 I.A. 115 held that when a Civil suit was decided, not on testimony given at the trial as to what took place on the night of the accident, but by the Judge's observation of what he saw on another night altogether, the decision based on it must be set aside. For these reasons we are of opinion that the procedure adopted by the Magistrate was irregular and that as he acted without jurisdiction in refusing to take evidence, his order should be set' aside. With the setting aside of the order, the order passed by the learned Judge of this Court attaching the timber must necessarily go, because it is for the Magistrate to say whether there was such an emergency as would justify him in acting under Section 145, Clause (4), Criminal Procedure Code. This case is not covered by Section 146; Criminal Procedure Code. Reid v. Richardson 14 C.P 361 to which the learned Counsel for the petitioner drew our attention, was a case in which the lower Court, having found that neither party was in possession, refused to make an order as to the attachment of the property When the matter came up before the High Court, it was held that it had the same powers as the original Court had under Section 146, Criminal Procedure Code, to direct the attachment of the property. We hold that the order as to the attachment, dated 10th October 1919 and made in Criminal Miscellaneous Petition No. 519 of 1919 on the file of this Court, must be vacated as a result of our setting aside the proceedings under Section 145, Criminal Procedure Code.
3. The only question is whether this case should go back to Mr. Throne. We do not wish to cast the slightest doubt upon his impartiality or upon his capacity to dispose of this case. But having regard to the statement which he has made more than once that any oral evidence that might be let in will not influence his mind, we would not be justified in sending the case back to him. In these circumstances we think it is desirable that the case should be sent to the District Magistrate with directions either that he should dispose of the case himself or send it for disposal to any other First Class Magistrate.