JAGDEO MANDAL Vs. PRASADI MANDAL

JUDGEMENT

(1.) These two criminal revision applications have been filed on behalf of the members of the first party and the third party to a proceeding under Sec. 145 of the Code of Criminal Procedure, 1898 (hereinafter referred to as "the Code") for setting aside the final order passed in that proceeding in favour of the second party-opposite party.

(2.) It appears that on 19-3-1971 a proceeding under Sec. 144 of the Code was initiated as an apprehension of breach of the peace was reported to the Magistrate. That proceeding was converted into a proceeding under Sec. 145 of the Code on 27-4-1971 because the dispute related to land. The disputed plots were 4678, 4715, 4840, 4882, 4817 and 5049 of village Khawaspur in the district Bhagalpur. During the pendency of that proceeding a pleader commissioner was appointed who reported about the configuration of different plots. He further reported that plot no. 4717 was amalgamated with some of the plots which were the subject-matter in dispute, On 9-7-1976 the members of the third party who are petitioners in Criminal Revision no. 196 of 1978 urged before the learned Magistrate that a3 from the pleader commissioner's report it appeared that plot nos. 4715, 4716 and 4717 were amalgamated as such the proceeding should be amended and that plot shoud also be included. On 10-9-1976 an order was passed to amend the proceeding and to include plot no. 4717 in the proceeding. He further directed that a fresh copy of the proceeding be issued to the parties. Thereafter all the parties were heard and ultimately by the impugned order the learned Magistrate declared second party-opposite party to be in possession of the land in dispute except plot no. 4717 which was directed to be included on 10-9-76. About this plot he came to the conclusion that as neither the second party nor the third party have laid claim over this plot the first party, that is, the petitioner in Criminal Revision 161 of 1978 was being declared in possession thereof.

(3.) Before the learned single Judge while challenging the validity of the final order passed under Sec. 145 of Code it was urged that the whole proceeding has been vitiated because the amendment aforesaid was allowed on 10-9-1976 when the new Code of Criminal Procedure came into force and as such the proceeding should have been disposed of in accordance with the procedure prescribed under the new Code and not in terms of Sec. 145 of the old Code. The learned single Judge has referred this case to the Division Bench for answering the question as to whether after inclusion of it new plot or a piece of land in a pending proceeding under Sec. 145 of the old Code the procedure under the new Code has to be disposed of as if the new Code had not come into force treating it to be a pending proceeding, The main basis of this argument appears to be that no sooner any property is added by way of amendment a fresh preliminary order is issued which will be deemed to be initiation of a new proceeding.