DAMODA PANIGRAHI Vs. BANCHHANIDHI PANGRAHI

JUDGEMENT

(1.) THIS revision has come before us by way of reference made at the instance of Honourable Das, J., who was of opinion that this case involved important questions of law. It arises out of a proceeding under Section 141, Criminal Procedure Code in which the petitioners were members of the second party and which was registered as Misc. Case No. 7/1 of 1972 in the court of Sub -divisional Officer and Magistrate, First Class, Bhadrak. The preliminary order was passed on 15.4.1972. The dispute relates to 15 decimals of land appertaining to Plot No.2137 and 8 decimals of land appertaining to Plot No.2139 in village Guamal, P.S. Tihidi, District Balasore. The parties concerned filed their affidavits in due course. As the Magistrate was unable to decide as to which of them was in possession of the subject -matter of dispute on the date of the preliminary order, he acted under Section 146, old Criminal Procedure Code by attaching it, drawing up a statement of the facts of the case and forwarding the record of proceeding to the Munsif, Bhadrak for determination of the question as to which the parties was in possession on the date of the preliminary order as explained in sub -section (4) of Section 145 of old Criminal Procedure Code, On receipt of the records, the Munsif registered a case numbered as Misc. Case No.47 of 1974 and after observing the procedure contemplated in Section 146, Criminal Procedure Code, passed the final order on 2.5.1975. The Munsif found that the first party members were in possession of only 4 decimals of land appertaining to Plot No.2137 while the second party members were in possession of the rest of area in Plot No.2137 in dispute and also of entire area in dispute appertaining to Plot No.2139. The records with his findings were then transmitted to the court of the Magistrate who, on receipt thereof, proceeded to dispose of the proceeding under Section 145, Criminal Procedure Code in conformity with the decision of the civil court by his order dated 13.5.1975.

(2.) THE first party, thereupon, filed a criminal revision numbered as 28 of 1975 before the Sessions Judge, Balasore under Section 397 of the new Criminal Procedure Code. The learned Sessions Judge by his order dated 2.10.1975 allowed the revision by declaring the possession of the first party members in respect of the entire subject of dispute. Thus being aggrieved by that order of the learned Sessions Judge, the second party members have filed the present revision.

(3.) I will now proceed to deal with the first question, namely, maintainability of the present revision directed against the order of the learned Sessions Judge dated 9.10.1975. It is contended by Mr. B.K. Mishra, learned counsel for the opposite parties, that since the final order under Section 145, Criminal Procedure Code was passed by the Magistrate on 13.5.1975 after coming into force of the new Criminal Procedure Code revision therefrom to the Sessions Court will be governed by the new Code, and, as such, a second criminal revision to this Court is barred under Section 397(3) read with Section 399(3) of the new Code. It is also contended that right to file a revision is not a vested right and as the impugned order was passed after coming into force of the new Criminal Procedure Code, revisional jurisdiction of the Sessions Court and of the High Court is to be invoked under the new Code, not under the old Code. This is in accord with the plain reading of the language of Sections 397, 398 and 401 of the new Criminal Procedure Code and in conformity with the general doctrine that procedural law is generally retrospective, that is to say, the new procedure shall govern the proceedings which commenced before such procedure came into force and were continuing on the date of such commencement. This is the exact view of another Bench of this Court in the case of Bhima Naik v. State, (1975) 41 Cut LT 674 = (1975 Cri LJ 1923). There is nothing in the saving Section 484 of the new Criminal Procedure Code to the contrary that the proceeding under Section 145 initiated under the old Criminal Procedure Code will not be entertained under the new Criminal, procedure Code. Therefore, the revision having been filed in the court of the Sessions Judge from the order of the Magistrate dated 13.5.1975, it must necessarily be entertained under Section 397 of the new Criminal Procedure Code, but it must be disposed of as it the new Criminal Procedure Code had not come into force, as will be discussed hereinafter. The ban provided under sub -section (2) of Section 397 of the new Criminal Procedure Code would also not be attracted as the final order under Section 145 is not an interlocutory order. It is next to be seen if a second revision to this Court is barred under Sections 397(3) and 399(3) of the new Criminal Procedure Code. Sub -section (3) of Section 397 runs as follows: -