JUDGMENT Stephen and Henderson, JJ. - In this case a Rule was granted calling upon the Magistrate and the opposite party to show cause why an order u/s 145 of the Code of Criminal Procedure declaring the first party to he in possession should not he set aside on the ground that the Magistrate had refused to issue process to compel the attendance of the witnesses of the Petitioner who was the second party. 2. The facts are not disputed. On the 2nd April 1902, the Deputy Magistrate, on the basis of a police report, instituted proceedings u/s 145 of the Code of Criminal Procedure and directed summons to issue to the witnesses mentioned in the police report, fixing the hearing for the 16th April. The witnesses so mentioned were not, so far as appeal's, the witnesses put forward by the parties and it is not shown whether they were served or not. On the 16th April, the parties not having filed their written statements, the ease was adjourned and the Magistrate made an order that the witnesses present, if any, should give recognizances of Rs. 20 each. On the 16th April the case was again postponed until the 8th May, on which day the parties filed their written statements and the evidence of two witnesses for the first party was recorded. In the meantime the Petitioner, on the 28th April, had put in a list of 31 witnesses and applied for process to compel their attendance. The order made upon the application is not quite intelligible. It was as follows : "Issue summons if there is orders." With the application the Petitioner deposited Re. 1-8 as costs for all the witnesses. In his explanation the District Magistrate states that as only Re. 1-8 was paid as process fee for all these (31) witnesses, summons only issued against five of these witnesses and they were duly served. The District Magistrate assumes that, "it is clear from the fact that as only Re. 1-8 was paid, the Petitioner wished summons to issue only against the five and intended to bring the others himself." He admits that on the 8th May none of the Petitioner's witnesses attended and he states that no application for further process was made that day. 1-8 was paid, the Petitioner wished summons to issue only against the five and intended to bring the others himself." He admits that on the 8th May none of the Petitioner's witnesses attended and he states that no application for further process was made that day. The latter statement appears to be incorrect, for we find that on the 8th May the Petitioner made an application alleging that none of the witnesses cited by him had -appeared and praying that as their evidence was material, process might be issued for their attendance. The Deputy Magistrate passed the following order upon the application: They must bring evidence themselves. These witnesses will be examined as soon as those on behalf of the first party have been. 3. The examination of the witnesses for the first party was continued on the 9th, 10th and 12th May and the case then adjourned until the 13th May. On that day the Petitioner again applied that process might be issued on payment of costs for the attendance of his witnesses, of whom he gave a list and he stated that they had not appeared and that their evidence was very material. On that application the Deputy Magistrate passed the following order: The witnesses for the first party have been examined and their case closed. Applicant should have taken steps earlier to procure the attendance of these witness...Applicant must bring his witness to-morrow. [That is, the 14th may. 4. On the 8th May, when the Petitioner applied for summons for his witnesses, there was apparently ample time to procure their attendance, but the Magistrate then refused the application, directing that the Petitioner should bring his own witnesses. Considering that the Petitioner had stated he was unable to bring his witnesses without the assistance of the Court, it was unreasonable to refuse his application. It was not suggested then that the application was too late. As a matter of fact, the Petitioner had previously on the 28th April applied for process against 31 witnesses and we do not think that it was right to assume from the fact that an insufficient sum had been deposited that he only required the attendance of 5 out of the 31 witnesses named. Even the 5 on whom summons was issued and served did not appear. 5. Even the 5 on whom summons was issued and served did not appear. 5. The affidavit on which the Rule was granted states that on the 14th May it had been found impossible to produce any witness without process. On that day another application was made alleging that the witnesses would not attend without summons and asking for process. Upon this application the Magistrate merely passed the order "File with the record." We may here express our opinion that this was not the proper way to deal with the application. It was the duty of the Magistrate either to grant or refuse the application. 6. On the 14th May the Petitioner was unable to produce any of his witnesses and after hearing the pleaders on both sides the case was adjourned for judgment to the 17th May, when the Magistrate, holding "that there was no evidence from the other side to rebut the evidence on the record," declared the first party to be entitled to possession until ejected in due course of law. 7. The only question we have to determine is whether the Magistrate, in refusing to issue process to compel the attendance of the witnesses of the Petitioner, acted without jurisdiction, for otherwise we are unable to interfere. 8. It has been contended that proceedings under Chapter XII of the Code of Criminal Procedure are in matters of procedure to be regarded as summons cases. The Code nowhere declares that such proceedings are to be so regarded; and it is remarkable that a distinction is drawn in Sections 355 and 356 between summons cases and inquiries under Chapter XII. Section 355 directs that in summons cases the Magistrate shall make a memorandum of the substance of the evidence of each witness, whereas Section 356 directs that in all inquiries under Chapter XII the evidence of each witness shall be taken, down in writing in the language of the Court by the Magistrate, or in his presence or hearing, or under his personal direction and superintendence and shall be signed by the Magistrate. In the case of Hurendro Narain Singh Chowdhry v. Bhobani Prea Baruani ILR (1885) Cal. In the case of Hurendro Narain Singh Chowdhry v. Bhobani Prea Baruani ILR (1885) Cal. 762 a Division Bench of this Court stated, it was inclined to think that from their nature, proceedings under Chapter XII should be regarded on all points of procedure as summons cases and the case was cited with approval in Ham Chandra Das v. Monohur Roy ILR (1893) Cal. 29. If such proceedings are to be regarded as summons cases so far as procedure is concerned, the taking of evidence is regulated by Section 244. The language of the section is not altogether appropriate to quasi-civil proceedings, such as proceedings under Chapter XII. It directs the Magistrate to take the evidence produced in support of the prosecution and by the accused in his defence; and empowers him, if he thinks fit, on the application of the complainant or accused, to issue process to compel the attendance of any witness, thus apparently leaving it in the discretion of the Magistrate to issue process or not. It has, however, been frequently held that this discretion should not be exercised to the detriment of the Applicant in an arbitrary manner. It appears to us that it cannot be laid down as a rule of law that proceedings under Chapter XII of the Code of Criminal Procedure should be regarded, as to procedure, as summons cases and we do not understand that in the eases to which reference has been made the Court intended to do more than lay down a rule of convenience in a case where special provision was not made by the law. Section 145 of the Code of Criminal Procedure enjoins the Magistrate "to receive the evidence produced" by the parties and to take such further evidence, if any, as he thinks necessary, but this does not, in our opinion, mean that the parties shall produce their own evidence, or absolve the Magistrate from the duty of assisting the parties ii procuring the attendance of material witnesses when it is shown that their attendance cannot be enforced without such assistance. 9. In the case before us, if the Magistrate had a discretion, we, consider that in refusing to issue process he acted arbitrarily and c without any good or sufficient reason. 9. In the case before us, if the Magistrate had a discretion, we, consider that in refusing to issue process he acted arbitrarily and c without any good or sufficient reason. The arbitrary exercise of discretion does not necessarily amount to acting without jurisdiction so as to justify this Court in interfering in all cases where discretion has been arbitrarily exercised. Where, however, the refusal of a Magistrate to assist one of the parties to a proceeding under Chapter XII of the Code of Criminal Procedure in procuring the attendance of his witnesses deprives that party? as in this case, of a hearing on the only question for the determination of the Court and so amounts to a denial of justice, we think that the Magistrate, in refusing process, acts without jurisdiction. In the case of Madhab Chandra Tanti v. Martin See ante, p. 508 (note) it was held by a Division Bench that a Magistrate in proceedings u/s 145 of the Code of Criminal Procedure acted without jurisdiction in refusing to issue process for the attendance of the witnesses cited by the Petitioners in that case. In that case also the Petitioners were unable to procure the attendance of any of their witnesses and their opponents were consequently declared, upon the unrebutted evidence produced by them, to be in possession of the land in dispute. The circumstances of the two cases are practically the same. It may be mentioned that a member of this Bench was a party to the decision on the case referred to. 10. Even if it cannot, in strictness, be said that the Magistrate in the case before us acted without jurisdiction or declined jurisdiction, we consider that, having regard to the view which we entertain as to the effect of his action, the case is one in which we ought to interfere in the exercise of the general powers of superintendence vested in this Court under 24 and 25 Vict. C. 104, Section 15. 11. At the same time, we are not prepared to say that a mere refusal to summon or examine a particular witness or particular witnesses cited by a party in proceedings under Chapter XII of the Code of Criminal Procedure is necessarily a ground for interference by this Court. Each case must be determined upon its own circumstances. 12. 11. At the same time, we are not prepared to say that a mere refusal to summon or examine a particular witness or particular witnesses cited by a party in proceedings under Chapter XII of the Code of Criminal Procedure is necessarily a ground for interference by this Court. Each case must be determined upon its own circumstances. 12. For the reasons stated, therefore, we set aside the order complained of. 13. It must be left to the discretion of the Magistrate to say whether, having regard to the existence or otherwise of circumstances likely to lead to a breach of the peace, the proceedings should be dropped, or taken up again and a reasonable opportunity afforded to the Petitioner to produce his witnesses with the assistance of the process of the Court, if necessary.