- (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 : 146. (1) If the Magistrate is of opinion that none of the parties was then in such possession, or is unable to decide as to which of them was then in such possession, of the subject of dispute, he may attach it, and draw up a statement of the facts of the case and forward the record of the proceeding to a Civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order as explained in Sub-section (4) of Section 145; and he shall direct the parties to appear before the Civil Court on a date to be fixed by him o Provided that the District Magistrate or the Magistrate who attached the subject of dispute may withdraw the attachment at any time, if he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute. (IA) On receipt of any such reference, the Civil Court shall peruse the evidence on record and take such further evidence as may be produced by the parties, respectively consider the effect of all such evidence, and after hearing the parties, decide the question of possession so referred to it. (IB) The Civil Court shall, as far as may be practicable, within a period of three months from the date of the appearance of the parties before it conclude the inquiry and transmit its finding together with the record of the proceeding to the Magistrate by whom the reference was made, and the Magistrate shall, on receipt thereof, proceed to dispose of the proceeding under Section 145 in conformity with the decision of the Civil Court. (IC) The costs, if any, consequent on a reference for the decision of the Civil Court, shall be costs in the proceedings under this section. (ID) No appeal shall lie from any find-Ing of the Civil Court given on a reference under this section nor shall any review or revision of any such finding be allowed. (IE) An order under this section shall be subject to any subsequent decision of a Court of competent jurisdiction. (2) When the Magistrate attaches the subject of dispute, he may, if he thinks fit (and if no receiver of the property, the subject of dispute, has been appointed by any Civil Court) appoint a receiver thereof, who subject to the control of the Magistrate shall have all the powers of a receiver appointed under the Code of Civil Procedure: Provided that, in the event of a receiver of the property the subject of dispute, being subsequently appointed by any Civil Court, possession shall be made over to him by the receiver appointed by the Magistrate, who shall thereupon be discharged. ;