CAPOOR, J. : This reference has been made by the learned Sessions Judge of Kumaon recommending that the order of the learned Sub-Divisional Magistrate, Dharchule, dated 30th of December, 1961, made in proceeding under Sec. 145 Cr. P.C. be set aside and the case be remanded for fresh enquiry on the basis of the affidavits which the parties should be called upon to file.

2. The case came up before our brother Mathur, J. and he was inclined to the view that as no failure of justice had been occasioned because of not requiring the parties to file affidavits the Irregularity was curable under Sec. 537 Cr. P.C. the effect of which Section was not considered in the case of Bhagwat Singh v. State, AIR 1959 All 763, a decision on which the learned Sessions Judge had relied in making the recommendation under consideration. He accordingly directed the papers to be laid before the Hon'ble the Chief Justice for constituting a larger Bench for the disposal of the reference.

3. Dalip Singh, opposite party had filed an application under Section 145 Cr. P.C. The learned Magistrate, who made preliminary order did not direct the parties to file affidavits in support of their respective cases. He merely directed the parties to file their written statements. On the date fixed for hearing the parties adduced oral evidence and it was on a consideration of that evidence that the learned magistrate decided the application under Sec. 145 Cr. P.C. In favour of the opposite party. As against that order an application in revision was filed by the applicants before the learned Sessions Judge who made the present reference.

The relevant portions of Section 145 Cr. P.C. read as below :-

"(1) Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is satisfied from a police-report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend the Court, in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute, and further requiring them to put in such documents, or to adduce by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims.

4. The Magistrate shall then, without reference to the merits or the claims of any such parties to a right to possess the documents and affidavits. If any, so put in, hear the parties, and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject :

Provided that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein. Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully, dispossessed, he may treat the party so dispossessed as if he had been in possession at such date :

Provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.

The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or things."

The aforesaid Section was amended by the Criminal Procedure Code Amendment Act No. XXVI of 1955. Prior to the amendment of the Section the parties had the right to examine witnesses in support of th