Kulwant Sahay, J.The petitioners were the second party in a proceeding u/s 145 of the Criminal Procedure Code initiated by the Sub-Divisional Magistrate of Hajipur. The proceedings were initiated on an application made by the Collector of Muzafferpur under the following circumstances. Certain plots of land which had been acquired by the Government under the Land Acquisition Act for the purpose of B. & N.W. Railway had been relinquished by the Railway Company on the ground that they did not require the land any longer After such relinquishment those plots of laud were resumed by the Government in September, 1923. In April, 1924 the Collector sold those lands by auction to one Khobari Choudhury, but when the Kanungo was deputed to deliver possession to the purchaser he was resisted by the petitioners who claimed those lands as their lands and not the lands belonging to the Railway Company. The Kanungo found certain structures on portions of the land and upon his report the Collector of Muzafferpur applied to the Sub-Divisional Magistrate of Hajipur for institution of proceedings u/s 145, Cr. P.C. On receipt of this application the learned Sub-Divisional Magistrate of Hajipur initiated proceedings u/s 145 of the Criminal Procedure Code by his order dated the 26th May, 1924 which runs thus:

The Collectors petition perused. Draw up proceedings u/s 145, Cr. P.C. at once for 16-6-24.

2. In these proceedings the Collector of Muzafferpur was the first party and the second party were the petitioners. On the 16th June, 1924 Gauri Shanker of the second party appeared and represented before the Sub-Divisional Magistrate that copy of the proceedings had not been served upon him or upon the other members of the second party and he wanted time to file written statement and to be ready to go on with the case. The learned Sub-Divisional Magistrate rejected the application with the following order:

Only Gauri Shanker is represented. In the case of others the copy of the proceedings were served by hanging the same on their residential houses on the 1st June. They and Gauri Shanker had enough time to be ready. Petition of Gauri Shanker for time rejected.

3. After rejecting the application for time the learned Sub-Divisional Magistrate at once proceeded to examine witnesses for the first party. He examined five witnesses and called upon Gauri Shanker to cross-examine them; Gauri Shanker expressed his inability to cross-examine them as he was not ready. The learned Sub-Divisional Magistrate refused to grant him time to cross-examine the witnesses and in the order-sheet he recorded the following order:

4. "Examined 5 witnesses for the first party. Cross-examination by Gauri Shanker declined. These witnesses are therefore discharged.

To 2-7-24, for evidence of second party.

5. On the 17th June, 1924 the second party filed an application in which they stated that on the previous day they were not ready to go on with the case inasmuch as the proceedings were not served upon them and no written statement had been filed and no documents had been produced and they prayed that the witnesses for the first party who had been examined on the previous day might be re-called for cross-examination. The learned Magistrate rejected this application without assigning any reason whatsoever. On the same day, namely, the 17th June the second party filed another application giving a list of witnesses whom they wanted to be summoned on their behalf. Amongst the witnesses named in this application were two witnesses Babu Jogeshwar Prasad, Sub-Deputy Magistrate of Samastipur, and Maulavi Ishaq, Sub Inspector of the Railway Police, whom they wanted to be summoned through the Superintendent of Police of the Railway Police at Samastipur. It was necessary to call these two witnesses in order to prove certain reports and enquiries made by them in a proceeding u/s 144 between the second party in the present proceedings and others in which proceedings the second party were found to be in possession of the land in dispute. The order passed upon this petition by the learned Sub-Divisional Magistrate was--"Issue summons on payment of T.A. of the Sub-Deputy Magistrate."

6. Now the amount of the travelling allowance was not stated and the petitioners were not told as to what amount was necessary for them to deposit in order to issue summons upon the Sub-Deputy Magistrate The case was called on the 2nd July, 1924. On that day the second party filed another petition to re-call the witnesses of the first Party for cross-examination. This was rejected on the ground that the second party had already had an opportunity to cross-examine the witnesses for the first party. On that day the second party filed another petition to summon Babu Jogeshwar Prasad, Sub-Deputy Magistrate, and Maulavi Ishaq, Sub-Inspector of the B. & N.W. Ry. Police. The learned Sub-Divisional Magistrate rejected this application also on the ground that the second party were asked on the 17th June to deposit the travelling allowance of the Sub-Deputy Magistrate which they had failed to do. As regards the Sub-Inspector Maualvi-Ishaq, the reason given for not summoning him was that he had been summoned on the previous application but the second party had given wrong address and the summons was returned unserved and even on the 2nd July, when fresh application, for summoning him was made no address was given of the Sub-Inspector. Having rejected this application of the second party the learned Sub-Divisional Magistrate proceeded at once to examine three witnesses of the second party who were present in Court and after cross-examining them these witnesses were discharged. He thereafter thought fit to make a local inspection and he fixed 6th July for a local inspection, Later on, on the same day after recording that he will hold a local inspection on the 6th July the learned Magistrate passed the following order:

The Assistant Government Pleader prays for an immediate local inspection. I will do it this evening. Inform parties.

7. He accordingly held the local inspection on that day and he postponed the case to the 23rd July, 1924 for order.

8. On the 22nd July the second party filed the application giving rise to the present revision case in this Court in which they prayed for quashing the proceedings or in the alternative for transfer of the case from the file of the Sub-Divisional Magistrate of Hajipur and a Division Bench of this Court admitted the application and ordered the issue of the usual notice and directed further proceedings to be stayed pending the disposal of this application. This order was passed by the Division Bench of this Court on the 22nd July, 1924 and from the affidavit filed today on behalf of the petitioners it appears that on the same day Amir Singh, the karpardaz of the second party, who had come to Patna to move that application, went back to Hajipur with a certificate given to him by Mr. Nirsu Narain Sinha, the Vakil who had moved the application, stating that the application had been moved by him and that this Court had admitted the application and had ordered the stay of further proceedings. The certificate of Mr. Nirsu Narain Sinha was filed before the Sub-Divisional Magistrate with an application in the first hour of the 23rd July, 1924 and it was stated that the petitioners had moved the High Court for quashing the proceedings and for the transfer of the case to some other Court and that a Division Bench of this Court had issued a rule and had directed further proceedings to be stayed and they prayed that further proceedings might be stayed, and that the learned Magistrate should refrain from hearing the arguments and deciding the case. The affidavit of Amar Singh filed to-day stated that this application was presented before the Sub-Divisional Magistrate on the 23rd July, in the first hour before the case was called on. But it appears that the learned Sub-Divisional Magistrate took absolutely no notice of this application and of the fact that this Court had stayed further proceedings pending the disposal of the application, and, without hearing the arguments on either side, he proceeded to pronounce his final order in the case declaring possession of the first party. Notice of this affidavit filed to-day, was given to the Government Pleader on 20th August and the correctness of the facts therein stated are not denied.

9. At the hearing of this application a preliminary objection is taken by the learned Government Pleader that this petition has become infructuous inasmuch as the proceedings had terminated in a final order declaring the first party to be in possession. Having regard to the circumstances of the case I am clearly of opinion that the action taken by the Sub-Divisional Magistrate was wholly irregular and unwise, and he has laid himself open to grave censure. His attention may be drawn to the observations of Mookerjee, J., in the case of Satinath Sikdar v. Ratanmani Naskar (1912) 15 C.L.J. 335. Once proceedings are stayed by this Court and the matter is brought to the notice of the Magistrate or the Court in which the proceeding is pending, it is his duty to stay his hands and stop further proceedings. In the present case an application was filed before him in the first hour before the case was called on supported by a certificate given by the Vakil who had moved the application in this Court and the matter was brought to his notice that this Court had stayed the proceedings. Under these circumstances it was his manifest duty to stay his hands and not to pass any order in the case. In spite of his being apprised of the fact that further proceedings had been ordered to be stayed by this Court he did proceed to dispose of the case and to pass final orders. This order cannot stand and must be treated as passed without jurisdiction. He had no power to pronounce the final order or to proceed with the case once the proceedings had been stayed by this Court. Courts have gone to the length of holding that whether orders of stay are communicated to the Court below or not, the moment such orders are made by the High Court, the Court in which the proceedings are pending has no jurisdiction, to make any further order in the case. However, the fact that the learned Sub-Divisional Magistrate had thought fit to proceed with the case and to make a final order will in no way affect the decision of the present case. Having regard to the circumstances stated in the petition and to the fact that no proper opportunity was given to the second party to represent their case and to cross examine the witnesses examined on behalf of the first party, or to produce their documentary evidence, it is clear that they were greatly prejudiced in the present proceedings.

10. As regards the Sub Deputy Magistrate whom the second party wanted to examine in order to prove his report in a previous case, the second party were never informed as to the amount that was necessary for them to deposit, and when on the 2nd July they renewed their prayer, it was evidently the duty of the Sub-Divisional Magistrate to give them an opportunity to deposit the travelling allowance and to summon the Sub-Deputy Magistrate. As regards the Sub-Inspector of the Railway Police Maulvi Ishaq, the prayer of the second party was that the summons might be served through the Superintendent of Police of Samastipur. That is the way in which summonses are served upon Government servants and that is the provision in Section 72 of the Criminal Procedure Code and I do not see how the address given by the second party in their application of the 17th June was incorrect or why the summons was not served on the Sub-Inspector when it was sent to the Superintendent of Police at Samastipur.

11. As regards the ground taken by the learned Vakil for the petitioner that the proceedings should be quashed inasmuch as the Collector had already sold the land to a third person and, therefore, had no interest left in the land and that, there fore, he cannot be made a party to the proceedings, I am clearly of opinion that this contention cannot be sustained. The Collector has no doubt sold the land to a third party, but he has not delivered possession to the third party and claims to be still in possession and the Sub-Divisional Magistrate was entitled to initiate proceedings if he received information from any source that there was a likelihood of a breach of the peace relating to possession of the immovable property. Therefore the prayer for quashing the proceedings cannot be granted. But in the circumstances of the present case it is desirable that the proceedings should be transferred from the Court of the Sub-Divisional Magistrate of Hajipur to some other competent Court.

12. The orders of the Sub-Divisional Magistrate passed by him after the 2nd July, 1924 are all set aside. The case will be transferred to the District Magistrate of Patna which is the nearest place from Hajipur and he will make it over to a Magistrate at Patna competent to hear and decide this case. The second party will be given proper opportunity to cross-examine the witnesses produced by the first party and produce their own documentary and oral evidence.