Stephen and Coxe, JJ.
1. In this case proceedings were instituted under Section 145 of the Criminal Procedure Code, and after the parties had put in their written statements, the Magistrate, on the 21st December, made the order: 'From the statements of the two parties I am inclined to think that both are in some kind of possession. They are all of one family.' He then gives them time to compromise the matter. Subsequently on the 21st January he notes: 'There is no compromise. I can not decide which party is in possession of the land and house, and, therefore, attach the same under Section 146 of the Criminal Procedure Code.'
2. Against this order the second party teas obtained this Rule to show cause why it should not he set aside. The ground Suggested for setting it aside is that it appeal's that on the day that the order was made the Magistrate had before him nothing except the written statements of the parties, and possibly some documents, though none have been entered as having passed through his hands. There were before Mm witnesses to examined on behalf of the second party whom he did not hear. The question is, is this a case in which we to interfere? In Various rulings, of which we only refer to the ruling in Surya Kanta Acharjee v. Hem Chunder Chowdhry (1902) I.L.R. 30 Calc. 508, it appears that we have power to interfere in cases where the Magistrate has not heard any evidence, in contravention of the provisions contained in Section 145(4). But it has been argued before us that by force of the Full Bench ruling, Sukh Lal Sheikh v. Tara Chand Ta (1906) I.L.R. 33 Cale. 68, we can only interfere in case of contravention of the provisions of Section (1), since that Sub-section, and that Sub-section alone, lays down what is necessary to give jurisdiction to the Magistrate; and the other subjections of Section 145 only prescribe the procedure to be followed by him after the jurisdiction is vested in him. We do not think that this is so; and from a passage in the judgment of Mr. Justice Ghose at the original hearing, we think, it is plain that there are other provisions than those contained in Sub-section (1) the contravention of which affects the jurisdiction of the Magistrate, and so gives us power to interfere.
3. This leads us to the question whether we ought to inter fore in this case, and we think we should do so, because the petitioner has been prejudiced by the action of the Magistrate which is. complained of. He had evidence which the party who produced it wished to be heard, but none of it was heard. We cannot go into the question of what that evidence was, and what would have been it effect if it, or any of it, had been beard. It appears to us in this case that the petitioner has been prejudiced. We think, therefore, that we ought to exercise the powers which, as we have said, we possess.
4. The Rule, therefore, is made absolute, and the order is set aside.