SHYAMAPRASAD MANDAL Vs. INDRA NARAYAN DAN

JUDGEMENT

(1.) THIS revisional application has beep directed against the judgment of the Sessions judge, Purulia, setting aside the order of the Sub-Divisional Magistrate, Purulia, passed under section 145 of the code of Criminal Procedure.

(2.) THE petitioner Shyama Prosad mondal alias Bhramar Mondal who was the first party before the learned Magistrate filed an application before the sub-Divisional Magistrate, Purulia on 16. 11. 72 which was ultimately converted to one under section 145 of the Code of Criminal Procedure on 4. 12. 72. The parties filed their show cause petitions and also affidavits and documents on their behalf. The learned Magistrate on consideration of the materials before him came to the finding that the first party, namely, Shyama prosad Mondal was in possession of the disputed land and that the opposite parties including the O. P. I, Indra narayan Dan who claimed to be a bargadar in possession, were not in possession of the disputed land, plot no. 709 under R. S. Khatian No. 262 and plot no. 710 under R. S. Khatian No. 260 in village Neckra, P. S. Man Bazar, District Purulia. The learned magistrate vacated the order of attachment and appointment of Receiver in respect of the disputed lands, against that order Indra Narayan Dan, one of the second party claiming himself to be a Bargadar, preferred a revisional application before the Sessions Judge. Under the provisions of the new Criminal Procedure Code, 1973. The learned sessions Judge, however, set aside the order of the learned Magistrate on the finding that it was not correct. Against that decision this revisional application has been filed by the first party, namely, Shyama Prosad Mordal alias Bhramar Mondal under section 439 of the old Criminal Procedure code, 1898 read with section 561a of the old Code. Whatever section might, have been mentioned, this application is a revisional application and as suck it was admitted.

(3.) I have heard Mr. Basu, the learned Advocate appearing on behalf of the petitioner and Mr. Datta, that learned Advocate on behalf of the contesting opposite party, Indra Narayan dan. The first contention of Mr. Basu before this Court is that the order of the learned Sessions Judge below was without jurisdiction because the learned Sessions Judge was to act under the provision of the old Code for exercising his revisional jurisdiction by sending the case to the High court with recommendation for setting aside the impugned order, if he was of the view that the judgment of the court below was illegal and wrong. Mr. Basu submits that the learned Sessions Judge ought not to have disposed of the matter under the provisions of the new Criminal Procedure Code. In this connection my attention has been drawn by Mr. Datta to Section 484, Sub-Section (2), Clause (a) of the Criminal procedure Code 1973. According to clause (a) of Sub-Section (2) of Section 484, if immediately before the date on which the new Code comes into force, here on 1. 4. 74, there is an appeal, application, trial, inquiry or investigation pending then such appeal, application, trial, inquiry or investigation shall be guided by the provisions of the old Code of Criminal Procedure, 1898. This is a saving clause. In the instant case immediately before the commencement of the new Code, the inquiry upon an application converted to a proceeding under section 145 of the old Criminal Procedure Code was pending and this was disposed of by an order dated 27. 7. 74 only a few months after the promulgation of the new Code. Thereafter an application was filed in the revisional jurisdiction of the Sessions Judge. This being after 1. 4. 74, that is the date of the commencement of the new Code, must be regulated by the provisions of the Code of 1973. Had this application been pending immediately before the commencement of the new Code of 1973, then certainly the matter would not have been guided by the old code. When after the disposal of the proceedings under section 145 of the criminal Procedure Code and subsequent to the promulgation of the new code, the application was filed before the Sessions Judge, he was justified in disposing of the matter according to the provisions of the new Code. In this connection it has been argued by Mr. Basu that the revisional application or the appeal should be treated as a continuation of the original proceedings and as the original proceeding under section 145 of the Criminal Procedure code was pending before the new code came into existence, the provisions of the old Code should have been followed even in the revisional application. The insertion of the word 'appeal' besides the words 'application', 'trial', 'inquiry' and 'investigation' in clause (a) of Sub-Section (2) of Section 484 of the new Code of, 1973 shows that 'appeal' or revisional application cannot be treated as continuation of the original application, inquiry, trial or investigation as mentioned in the said clause (a ). In the absence of clear and specific provision within section 484 or any part of the New Code that. appeal and revisions would be treated as continuation of the original application, inquiry, trial, investigation or any other original proceedings and that if appeals and revisions are filed after the commencement of the New Code, they are to be guided by the provisions of the old Code, the contention of Mr. Basu cannot be accepted. According to the provision of the new Code, the old code is repealed but the provision of the old Code is applicable in cases clearly mentioned in clause (a) of sub-section (2) of Section 484. In this view of the matter also it cannot be heard to say that the provision of the old Code would be applicable either before the Sessions Judge or before this Court in case of revisions and appeals filed after 1. 4. 73. I cannot accept the contention of Mr. Basu as urged before me. Although the instant revisional application before this court was purported to be one under section 439 of the old Code of the Criminal Procedure, 1898, that application has been accepted by this Court as revisional application under section 401 of the new Code and this can be done by the court in suitable circumstances for doing proper justice.