MEHBOOB RAZA KHAN Vs. MOHD SHAH KHAN

JUDGEMENT

(1.) ON 26-10-1971 Mohammad Shah Khan and Sufi Shah Khan moved an application before the Sub-Divisional Magistrate, Terai, Haldwani, District Nainital, for proceedings under Section 145, Cr. P. C. (old) against Mehboob Raza Khan. It was alleged that there was dispute between them and Mehboob Raza over certain agricultural plots, which had given rise to reasonable apprehension of breach of the peace. The Sub-Divisional Magistrate called for a report from the police officer concerned and feeling satisfied that a dispute likely to cause a breach of the peace existed, passed a preliminary order on 22-12-1971. The subject-matter of dispute was attached and the parties were directed to file written statements and affidavits in support of their respective contentions. After considering the material on the record the learned Sub-Divisional Magistrate found it difficult to decide as to which party was in possession of the disputed property on the date of the preliminary order and within two months before it. He therefore, made a reference to the Civil Court under Section 146 (1), Cr. P. C. (old ). This reference was pending in the Court of the Munsif, Nainital on 1-4-1974 when the Cr. P. C. 1973 (hereinafter called the new Code) came into force. The learned Munsif decided the reference on 19-3-1976 by holding that different parties were in possession of different plots. On receipt of this finding the learned Sub-Divisional Magistrate passed a final order on 30-4-1976 in conformity with the finding given by the Munsif and directed release of the attached property in the light of that finding. Criminal Revn. No. 1032 of 1976 has been filed against it. It came up for hearing before a learned single Judge of this Court. One of the points which arose for consideration was whether the finding given by the learned Munsif and the order passed by the learned Sub-Divisional Magistrate in conformity with that finding can be challenged in this revision under Section 397 (1) of the new Code. The learned single Judge was of the opinion that though the revision was under the new Code yet it would be disposed of in accordance with the provisions of the old Code, which prohibited a revision against the finding given by the Munsif on a reference made under Section 146 (1) of that Code. Since a contrary view was taken by two learned single Judges of this Court in Dildar Khan v. State of U. P. 1976 All Cri C 193 : 1977 Cri LJ 118 and Shaukat Ali v. Sadaqat Ali 1977 All Cri C 59 : 1977 Cri LJ 460 and the question involved was of considerable importance which was likely to affect a large number of revisions pending in this Court, he referred the following question for decision to a larger Bench. "can the finding of the Civil Court, given on a reference made under Section 146 (1) of the old Cr. P. Code in a case under Section 145, Cr. P. C. pending since before coming into force of the new Cr. P. Code and the final order passed by the Magistrate in conformity with that finding, be questioned in a revision filed under the new Cr. P. Code irrespective of the fact that the said finding and order was unassailable on account of bar imposed by Section 146 (1-D) of the old Criminal Procedure Code.

(2.) IN Criminal Revn. No. 1174 of 1977 also proceedings under Section 145, Cr. P. C. were initiated on 15-10-1973, the preliminary order was passed on 16-10-1973 and the question as to which party was in possession of the disputed property at the relevant time was referred to the Civil Court for a finding as the learned Sub-Divisional Magistrate was unable to decide it himself. The reference was made in 1973 before the new Code came into force. The Civil Court recorded its finding on 2-8-1976 and returned the record. On receipt of the same, the learned Sub-Divisional Magistrate passed an order in the light of the finding and Criminal Revn. No. 1174 of 1977 has been filed against it. Since the same question was involved in this revision also, it was connected with Criminal Revn. No. 1032 of 1976. It is under these circumstances that the matter has come up before us for deciding the said question.

(3.) SECTION 146 of the old Code read as follows :