H. N. Kapoor, J. - (1.) THIS revision arises out of proceedings under Section 145 CrPC which were started on the basis of an application dated 2-1-1974 filed by Faqir Hussain, Advocate, Football Secretary of the District Sports Association, Jaunpur on the allegations that certain plots nos. 88, 161, 160, 159, 158, 163, 164 and 165 were playground of the District Sports Association and were under its possession for the last several years. But the opposite party Raja Yadvendra Datt Dube along with his employees was interfering with the possession of the aforesaid Association by trying to cultivate them forcibly and as such there was apprehension of breach of the peace. THIS application was filed before the Sub-Divisional Magistrate, who got an enquiry made through the Tahsildar. It may be stated here that earlier similar application had been filed on 18-10-1973 by Faqir Hussain under Section 145 CrPC but that was ordered to be filed by the Sub- Divisional Magistrate after a report of the Station Officer, Kotwali had been sent for who had reported that only plots nos. 147 and 162 were included in the field of the Indian Club while the other plots were under the cultivatory possession of Raja Yadvendra Datt Dube. In the second application it was alleged that the Station Officer was colluding with Raja Yadvendra Datt Dube and so this time the Sub-Divisional Magistrate got an enquiry made through the Tahsildar. The report of the Thasildar dated 15-3-1974 was in favour of the District Sports Association and so the Sub-Divisional Magistrate passed the preliminary order on 17-4-1974. Sri R. S. Srivastava, Sub-Divisional Magistrate before whom these proceedings were pending was transferred from the district of Jaunpur and Sri K.K. Dwivedi was subsequently posted at Jaunpur and the case was transferred to his court. Further proceedings continued in the court of Sri K. K. Dwivedi, who passed the final order dated 10-9-1975 confirming the preliminay order and restraining Raja Yadvendra Datt Dube and the other revisionist from interfering with the possession of the District Sports Association. He ordered that the District Sports Association, Jaunpur, the first party shall remain in possession of the plots in dispute.
(2.) FEELING aggrieved by this order, this revision has been filed. The first point that arises for decision is whether the proceedings under Section 145 CrPC should be deemed to be under the Old CrPC or the New CrPC. The learned Asstt. Govt. Advocate argued that the proceedings under Section 145 CrPC actually started after the passing of the preliminary order and as such these proceedings should be deemed to be under the New CrPC. I do not agree with this contention. As the application had been moved on 2-1-1974 and the enquiry had already been ordered by the Sub-Divisional Magistrate through the Tahsildar on the basis of that application and the report of the Tahsildar too is dated 15-3-1974, the proceedings should, therefore, be deemed to be under the Old CrPC. I may observe that in case the proceedings could have been deemed to be under the New CrPC it would not have been open to the learned Magistrate to have proceeded further and to pass the final order under Section 145 CrPC. After the property had been attached, as was held by me in the case of Chandi Pd. v. Om Prakash Kanodia, 1975 AWC 558. It is significant that the property in the present case was also attached on 17-4-1974. However, as observed above, I am of the opinion that the proceedings should be deemed to have been started under the Old CrPC. The first application was filed before the Sub-Divisional Magistrate on 2-1-1974 and he himself had ordered an enquiry on that application. In my opinion, the provisions of Section 484(2) CrPC will apply to such an application or enquiry.
(3.) SRI K. B. L. Gour learned counsel for the revisionist argued that the proceedings being under the old Code of Criminal Procedure, could have been continued by the Magistrate First Class, Sub-Divisional Magistrate or the District Magistrate who was posted in the district from before and not by an Executive Magistrate, who was posted in the district after the 1st of April, 1974. According to him, even the Sub-Divisional Magistrate should have powers of First Class Magistrate, as provided under Schedule HI clause 3 subclause (7) of the CrPC (Old). He has even argued that the Executive Magistrate could not retain powers of the Magistrate First Class after coming into force of the new CrPC and as such this case could not have been decided by any Executive Magistrate. So far that point is concerned, I have already decided in Cr. Misc. No. 2158 of 1975 (Visheshwar Pathak v. State) connected with Cr. Misc. No. 2602 of 1975 (Ram Prakash Misra v. State) decided on 18-8-1975 that the powers of the Magistrate First Class conferred on Executive Magistrate prior to the coming into force of the New Code, would remain intact under Section 484(2) (b) for the limited purpose of continuing cases pending in courts from before as that was the intention of the legislature in enacting Section 484 (2) (a) CrPC. The only exception was in the case of Special Magistrates when fresh powers had to be conferred. In deciding that case I had also considered the opinion of the Division Bench in Cr. Case No. 4207 of 1974, Debi Singh v. State decided by Bakshi, J. on 12-5-1975. He had referred certain questions to the Division Bench which were answered on 14-3-1975. in that case by implication it can be said that even the Division Bench was of the opinion that powers of First Class Magistrates conferred on Sub-Divisional Magistrate were saved for continuing old cases even though these Sub-Divisional Magistrates were described as Executive Magistrates under the new CrPC. Sri Gour has argued that under Section 484 (2) (b) only those powers conferred or notifications issued etc. have been saved which could have been issued under the corresponding provisions of this Code and since there is no provision for conferring powers on Magistrate First Class in the New Code, powers conferred as Magistrate First Class under the old CrPC have not been saved. According to him under Section 11 CrPC Judicial Magistrates of First Class and Second Class have been created while under Section 12 CrPC the law contemplated of creating Magistrates of First, Second or Third Class. Those Magistrates cannot be placed in the category of Judicial Magistrates. This argument will render the provisions of Section 484(2) CrPC to be nugatory, and it will not be possible to continue any case which was pending under the old CrPC either before the Judicial Officer or the Executive Magistrate of the First Class because the old CrPC did not recognise even the Judicial Officer which was a creation by the Govt. order in this State. The language of Section 484 CrPC may not be happily worded but I have no doubt that the intention of the legislature was to save the powers of the Magistrate First Class or Second Class or Third Class conferred on various officers under the old CrPC for the purpose of continuing pending cases after the coming into force of the new CrPC.;