Syed Shamsul Huda, J.
1. In a proceeding under Section 145, Criminal Procedure Code, there were three persons in the 1st party and twenty in the second. Of the twenty persons forming the Second party, all except No. 10 stated in their written statements that they had no concern with the land which belonged to Moiram Bewa. Second party No. 10 alleged that he had been cultivating about a bigha of land as bargadar under (sic). Apparently they took no further interest is the case, adduced no (sic) did not cross-examine the (sic) of the first party. On the day the written statements were filed, Moiram Bewa appeared and asked to be made a party, alleging that the land in respect of which there was the dispute had not been correctly described and that the boundaries given in the proceeding included land on which stood her dwelling house and part of which she cultivated. She said that the other side had been trying fraudulently to deprive her of her homestead, of which she with her sons was in possession. The petition was filed before any evidence was recorded. The Magistrate rejected the application of Moiram Bewa on the ground that it was filed too late. Ultimately the Magistrate parsed an order in favour of the first party in terms of Section 145 of the Criminal Procedure Code.
2. It appears that the first date of hearing was fixed on the 14th of April 1919 and on that day the second party applied for time, alleging that the notice had been served only the day before. A similar petition was filed by the first party. The next date fixed was the 25th of April, and on that day the first party again asked for an adjournment and adjournment was given. Moiram Bewa states in her petition to this Court, which is supported by an affidavit, that she came to court on that day with a petition praying to be made a party but found that the learned Sub Divisional Magistrate had left Kustia for Khoksa by the morning train. The petition which was actually filed on the 7th of May, however, shows that it was not ready before that date, as the Court-fee stamp was purchased on that day and the petition is itself dated the 7th of May, but it is possible that finding the Magistrate absent on the 25th of April the Court-fee stamp was not purchased on that day. There is intrinsic evidence that the application was ready before it was dated. The Magistrate in his explanation does not deny that he had left Kustia by the morning train that day. If the facts stated are correct--they are not denied by the Magistrate nor is there a counter-affidavit from the other side, it is difficult to understand how it can be said that the petition was filed too late. In the Moffusil, so far as I am aware, petitions in connection with a case are only filed on the dates fixed for bearing. If the facts stated in her petition to this Court by Moiram Bewa are correct, a grave injustice has been done to her. The land had been previously attached and a postponement of the proceedings could not have led to any serious inconvenience and ought under the circumstances to have been granted. Moiram Bewa alleges, and the fact is not denied that the order has led to her eviction from her dwelling house, which has been demolished.
3. The only material for the Magistrate's finding that the application is not bona fide is that the same Mukhtear who filed the written statements of the second party also presented her petition for being added as a party. I need hardly say that this is a very slender material upon which to base such a conclusion. I think Moiram Bewa should have been given an opportunity to show that she was actually in possession. It is only then that the Court could form an opinion regarding the bona fides of her claim.
4. It is argued that the question of adding parties does not involve a question of jurisdiction, and reliance has been placed on the Full Bench decision in Krishna Kamini v. Abdul Jabbar 30 C. 155 : 6 C.W.N. 737. In that case it was laid down by Mr. Justice Hill and the majority of the Judges concurred with him, that ordinarily these questions do not go to jurisdiction. Assuming that they do not, there is no authority for the proposition that our power of superintendence is confined to questions of jurisdiction alone. In the subsequent Fall Bench case of Sukh Lal Sheikh v. Tara Chand 33 C. 68 : 2 C.L.J. 241 : 9 C.W.N. 1046 : 2 Cr. L.J. 618 it was argued that this Court has the power of interference in all cases of injustice, It was conceded. by the Advocate General that the power could be exercised, not only where inferior Courts had acted without jurisdiction or refused jurisdiction, but also when these Courts have committed illegality or material irregularity. But in every case it must be shown that Justice has been denied and Maclean, C.J., in delivering the judgment of the Court observed as follows: 'in our opinion the power, which is discretionary, ought in relation to cases under Section 145 to be exercised with every caution. Assuming that in any particular case the Court has proceeded with irregularity, we do not think that this Court should interfere, unless it can be shown that some one has been materially prejudiced by such irregularity. If, however, the subordinate Court has acted without jurisdiction, this Court will interfere.'
5. In this case I think there are reasonable grounds for the apprehension that the action taken by the Magistrate has resulted in a serious failure of justice and I would make the Rule absolute.
6. I regret to have to differ from my learned brother and although his opinion prevails, I have thought it necessary to express my opinion at some length regarding the merits of the case.
Newbould, J.
8. I would discharge this Rule. The decision of the Full Bench in the case of Krishna Kamini v. Abdul Jubbar 30 C. 155 : 6 C.W.N. 737 is that the omission to join a party in proceedings under Section 145 is not an error of jurisdiction. Nor can I agree with my learned brother that there has been an irregularity resulting in such material prejudice as would justify our interference. There was consider-able delay on the part of the petitioner. Though she says the Magistrate left Kushtia by the morning train on the 25th April 1919, it is not stated in the affidavit that she was unable to file her petition on that account, I also thick that the Magistrate had good' reason for holding that the application was not made in good faith. If the petitioner really wished to prove her claim to possession, she could have done be through her alleged bargadar Torap Ali Sheikh.
9. As this application is made under Section 107 of the Government of India Act, the decision of the Senior Judge will prevail and the Rule will be discharged.
10. In this case after we delivered our respective judgments the learned Vakil for the petitioner contended that the case should be referred to a third Judge. He argues that Section 439 of the Criminal Procedure Code is comprehensive enough to include all cases of revision, whether the power is exercised under the Code or under any other enactment, and that so far as criminal cases are concerned, Section 36 of the Letters Patent has been superseded by the Criminal Procedure Code. In support of his contention the learned Vakil relied on the decision of the Bombay High Court in Queen-Empress v. Dada Ana 15 B. 452. He also relies on two decisions of this Court in Laldhari Singh v. Sukhdeo Narain Singh 27 C. 892 : 4 C.W.N. 61 and in Sajuddi Mandal v. F.L. Cork 46 Ind. Cas. 41 : 22 C.W.N. 499 : 27 C.L.J 465 :19 Cr. L.J. 681 in which a difference of opinion regarding the propriety of an order passed under Section 145 of the Criminal Procedure Code was referred to a third Judge instead of being dealt with in accordance with the provisions of Section 36 of the Letters Patent. No great value, however, attaches to the last two cases, because the point was not argued and it was apparently assumed that Section 429 applied by the operation of Section 439. There are, however, other cases of this Court in which a different procedure was adopted. In the case of Mathura Sahu v. Damri Ram 14 Ind. Cas. 755 : 15 C.L.J. 337 a difference of opinion regarding the propriety of a sanction under Section 195 of the Criminal Procedure Code was dealt with under Section 36 of the Letters Patent and the judgment of the senior Judge prevailed. This was apparently on the ground that the power exercised by the High Court under Section 195 of the Criminal Procedure Code was not in the exercise of an appellate or revisional jurisdiction and that the jurisdiction was original, to which neither Section 429 nor Section 439 applied. A similar view was taken by a Full Bench of the Madras High Court in Bapu v. Bapu 14 Ind. Cas. 305 : 39 M. 750 (F.B.) : 11 M.L.T. 367 : (1912) : M.W.N. 499 : 22 M.L.J. 419 : 13 Cr. L.J. 209. In an unreported case a difference of opinion between two learned Judges of this Court regarding the propriety of granting bail to an undertrial prisoner was dealt with under Section 36 of the Letters Patent. These cases are against the view of the Bombay High Court that the Criminal Procedure Code has overruled the provisions of Section 36 of the Letters Patent.
11. In support of the contrary view the learned Vakil for the opposite party has relied on the decision of the Full Bench of this Court in Har Prasad Das v. Emperor 19 Ind. Cas. 197 : 40 C. 477 : 17 C.W. N. 647 (F.B.) : 17 C.L.J. 245 : 14 Cr. L.J. 197. In that case the point argued was that an order passed by a Civil Court under Section 476 of the Criminal Procedure Code being outside the scope of Section 435, the matter could not be dealt with under Section 439. This contention prevailed and after stating that Section 435 did not apply to the case, the learned Judges observed: Nor does Section 439 touch the matter. It is clear that Sections 435, 439 must be read together, as pointed out by Wilson, J., in Hari Dass Sanyal v. Saritulla 15 C 608 at p. 617 : 13 Ind. Jur. 56. Section 439 must, therefore, be read along with and subject to the provisions of Section 435.' This decision concludes the present question and is a clear authority for the proposition that if a case is outside Section 435 as the present case is, Section 439 cannot apply to it. That being so either Section 36 of the Letters Patent applies or there is no law regulating the procedure. If it be held that Section 36 does not apply because it only refers to original or appellate jurisdiction, we think in the absence of any provision to the contrary we should act in accordance with the principle underlying that section. We accordingly hold that in this case the opinion of the senior Judge prevails.