Defects and irregularities in the procedure followed under Section 145, CrPC, such as the absence of a preliminary order, failure to serve the order, or non-appearance of some parties, are curable under Section 537, CrPC, unless they vitiate the proceedings or cause prejudice to the parties.

Das, J.

1. This is a reference by the learned Sessions Judge of Hazaribagh recommending that an order dated 13th August 1949 made by a Magistrate exercising first class powers at Hazaribagh in a proceeding under Sec.145, Criminal P. C., be set aside. By the order in question the learned Magistrate found the first party to the proceeding in possession of the lands in dispute. He declared the possession of the first party and forbade the members of the second party from interfering with that possession until evicted in due course of law.

2. I have heard Mr. T.K. Prasad appearing for the members of the second party in support of the reference. Mr. Bajrang Sahay has been heard against the reference.

3. Before I state the reasons which the learned Sessions Judge has given in support of his recommendation, I should state the facts relevant to the points now in issue. The facts are these. On 19th October 1948, two persons, Badri Mahton and Ramkumar Mahton, first party in the subsequent proceeding under Sec.145, Criminal P.C., filed a petition regarding certain lands detailed in Schedule A, appended to the petition. They alleged that the lands were the royaiti lands of one Lalo Mahton who died issueless. On his death Mt. Sanichari, widow of Puna Mahton, who was the brother of Lab Mahton, and Raghu minor son of Puna Mahton, deceased, came in possession of the lands. Badri Mahton and Ramkumar Mahton claimed that they had purchased the lands by a registered sale-deed, dated 15th June 1936, from Mt. Sanichari for self and acting as guardian of Raghu. They further alleged that certain persons, who subsequently were made members of the second party to the proceeding, claiming themselves to be agnates of Lalo Mahton, were likely to disturb their peaceful possession, They referred to certain acts which gave rise to an apprehension of a breach of the peace. This petition was sent to the local police for an enquiry and report. On 25th October 1948, the local Sub-Inspector of police submitted a report in which he stated that there was an immediate apprehension of a breach of the peace with regard to the lands and that actually the contending parties had gone to the lands on 23rd October 1948, and a breach of the peace was averted with difficulty. The Sub-Inspector of police mentioned the names of four persons including Badri Mahton and Ramkumar Mahton as members of the first; party; and mentioned the names of thirteen persons as members of the second party. Amongst the members of the Second party, two names are important to remember. They are Barhan Mahton and Genda Mahton, who claimed that their grandfather and the grandfather of Lalo Mahton were brothers. They further claimed that they were the nearest gotias and had succeeded to the estate of Lalo Mahton, and were in possession of the disputed lands. On receipt of the police report, the learned Sub-divisional Magistrate draw up proceedings under Sec.144, Criminal P. C. against both parties and restrained both parties from going upon the lands. The parties showed cause against the order under Sec.141 and on 8th December 1948, the learned Sub-divisional Magistrate heard the parties. On that date he passed the following order:

"Heard both parties. This case should be decided on evidence. Draw up proceedings under Sec.145, Criminal P. C. against both parties asking them to show cause, if any, by 23rd December 1948. The land is attached."

On 23rd December 1949, and succeeding dates, the parties took time. Ultimately, both parties filed written statements, except some members of the second party to whom I shall presently make a reference, of their respective claims as regards the fact of actual possession of the lands in dispute. The case was then transferred to several Magistrates one after another and ultimately came to be dealt with by Mr. B. Ojha, a Magistrate exercising first class powers at Hazaribagh. He heard the evidence of both parties and the arguments of their lawyers. On 18th A