DWARKA PRASAD, J. - (1.) THIS application under section 482 Cr. P. C. raises a short but interesting question about the interpretation of section 484 (2) (a) of the Criminal Procedure Code, 1973 (hereinafter called "the new Code" ).
(2.) THE facts, which have given rise to the aforesaid question, may be briefly stated, are that different plots of agricultural lands, measuring 112bighas 7 biswas, were allotted by the Custodian Department to Khanumal alias Khiyamal, Mag-an Mal, Chimanlal and Deepu Mal in the year 1961. In order to manage the said 112 bighas and 7 biswas land, all the aforesaid allottees appointed one Balchand Sindhi as their power of Attorney Holder. Some time later, the Mukhtiar-Aam, Balchand Sindhi, sold the said 112 bighas and 7 biswas land by means of a registered sale deed dated 29-9-1969 to Kapoor Singh, Karnailsingh and Nihal Singh, who will hereinafter be described as "party No. 2". But Nahar Singh and Pola Singh, who will hereinafter be described as "party No 1," contested the claim of the alleged purchasers on the ground that they were in cultivatory possession of the entire land measuring 112 bighas and 7 biswas since the year 1961 on behalf of the allottees thereof. According to party No. 1, the possession of the disputed land was never transferred by Balchand Sindhi to party No. 2. Proceedings under section 107 Cr. P. C. were taken. THEreafter, party No. 2 filed a complaint under section 447 and 307 I. P. C. against party No. 1 but in those proceedings members of party No. 1 were acquitted. Some time later the Station House Officer of Police Station Rawatsar filed a report before the Sub-Divisional Magistrate under section 145 of the Code of Criminal Procedure, 1898 (hereinafter referred to as 'the old Code') on April 1, 1970, alleging that there was a dispute about possession of agricultural land in question between party No 1 and party No. 2 and there was likelihood of breach of peace, as both the parties were asserting their alleged claim of possession of the disputed fields. On that very day, in order of attachment was passed by the Sub-Divisional Magistrate and the Tehsildar, Nohar was appointed as the Receiver. A preliminary order was also drawn under section 145 Cr. P. C. on April 1, 1970 itself by the Sub-Divisional Magistrate, Nohar, calling upon both the parties to file their written-statements and affidavits along with documents etc. in support of their respective claims. The Sub-Divisional Magistrate, Nohar by his order dated August 25, 1971 declared that party No. 1 was in possession over the agricultural lands in dispute on the date of the preliminary order Party No. 2 thereupon preferred a revision petition before the District Magistrate, Sriganganagar, which was allowed by the order dated January 17, 1973 and a reference was made by him to this Court. The reference was accepted by this Court on January 4, 1974 and the revision petition was allowed and the case was remanded to the Sub-Divisional Magistrate, Nohar with the direction that both the parties should be asked to file fresh affidavits, as the affidavits filed earlier were inadmissible, on account of the fact that they did not clearly state as to which part of those affidavits was true to the knowledge of the deponents and which part thereof was true to their belief. Thus, the proceedings were remanded to the Sub-Divisional Magistrate, who allowed both the parties to file fresh affidavits and thereafter the matter. This time, the Sub-Divisional Magistrate by his order dated February 12, 1975 declared party No. 2 to be in possession of the disputed land on the date of the preliminary order. A revision petition was again preferred, this time, by party No. 1 and the Additional Sessions Judge, Sriganganagar again allowed the revision petition by his order dated February 6, 1978. It was again held that the affidavits filed by the parties were not properly verified, as the affidavits did not clearly state as to which part thereof was true to the knowledge of the deponents and which part was true to their belief and so the matter was again remanded to the Sub Divisional Magistrate, Nohar with the direction that the parties should be allowed to file fresh affidavits in accordance with law and the matter be decided afresh. Subsequently, the Sub-Divisional Magistrate received fresh affidavits of the parties and their witnesses for the third time and after considering the written-statements, documents and affidavits filed by the parties, the Sub-Divisional Magistrate, Nohar by his order dated July 17, 1978 again declared that party No. 2 was in possession of the disputed land on April 1, 1970. A revision petition preferred by party No. 1 was dismissed by the Additional Sessions Judge, Nohar by bis order dated May 2, 1981. Thereafter, the present application under sec. 482 Cr. P. C. has been filed by party No. 1 in this Court. The main contention advanced by the learned counsel for the petitioners in this case was that after the Additional Sessions Judge, Sriganganager had remanded the matter by his order dated February 6,1978, the procedure prescribed by the provisions of section 145 of the Criminal Procedure Code, 1973 should have been followed and the parties should have been asked to produce their evidence instead of proceeding to decide the case on the basis of the affidavits filed by the parties. The argument of the learned counsel for the petitioners is that as the new Code came into force with effect from April 1, 1974 and thereafter, by virtue of the provisions of section 484 (2) (a) of the new Code, the provisions of section 145 of the new Code were applicable to the remanded case and the proceedings in the instant case were vitiated because the learned Sub-Divisional Magistrate, Nohar and the Additional Sessions Judge, Sri Ganganagar decided the case on the basis of affidavits produced by the parties according to the old Code of Criminal Procedure. The argument of learned counsel was that according to the provisions of the new Code, parties should have been asked to produce their evidence before the learned Magistrate, as required under clause (iv) of sub-section (4) of section 145 Cr. P. C. On the other hand, learned counsel for the non-petitioners submitted that as the proceedings under section 145 Cr. P. C. were pending before the Sub Divisional Magistrate at the time when the new Code came into force and the proceedings after remand must be considered to be incontinuation of the earlier proceedings, as such the procedure prescribed under section 145 of the old Code was rightly applied and the case was properly decided after a consideration of the written-statements, documents and affidavits produced by the parties before the learned Sub-Divisional Magistrate. It was argued by the learned counsel that the preliminary order was passed on April 1, 1970 under sub-section (1) of section 145 of the old Code, directing the parties to put in their written-statements and produce the documents ana affidavits in support of their respective claims regarding possession over the land in dispute and the said preliminary order could not be modified, even after the matter was received by the Sub-Divisional Magistrate, Nohar by remand in pursuance of the order of the Additional Sessions Judge dated February 6, 1978. It was also submitted by the learned counsel for the non-petitioners that after the preliminary order was passed under sub-section (1) of section 145 Cr. P. C, the matter was under enquiry before the learned Magistrate and by the order of the Additional Sessions Judge dated February 6, 1978 the case was sent back for further enquiry and as such the procedure prescribed by the old Code must be followed until the completion of the enquiry which began as early as on April 1, 1970. The provisions of section 484 (2) (a) of the new Code, which are relevant for the purpose of deciding this case are as under:- " (2) Notwithstanding such repeal:- (a) if, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), as in force immediately before such commencement, (hereinafter referred to as the Old Code), as if this Code had not come into force : Provided that every inquiry under Chapter XVIII of the Old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code. "
(3.) INSTEAD of repealing the old Code completely, the aforesaid provisions were kept alive for the disposal, continuation and completion of the proceedings of such appeal, application, trial, enquiry or investigation, which were pending on the date when the new Code came into force. After the reference made to this Court was allowed by the order dated January 4, 1974, the case was remanded to the Sub-Divisional Magistrate, Nohar with the direction to allow the parties an opportunity to file fresh affidavit's. The proceedings under section 145 Cr. P. C. were undoubtedly pending before the court of the Sub-Divisional Magistrate, Nohar immediately before April 1, 1974, when the new Code came into force. Thus, it cannot be disputed nor has it been disputed that the proceedings under section 145 Cr. P. C. were preferred under the old Code were disposed of when the Sub-Divisional Magistrate passed his order dated February 12, 1975. But the said order passed by the Sub-Divisional Magistrate was set aside by the Additional Sessions Judge by his order dated February 6, 1978 passed in the revisional jurisdiction the proceedings were remanded to the S. D. M. , Nohar. The question which has been raised now is as to whether after the remand order was passed by the Additional Sessions Judge on February 6, 1978, the earlier proceedings can be said to be pending so as to make the procedure prescribed by the old Code applicable to such remanded proceedings or the aforesaid order passed by Additional Sessions Judge dated February 6, 1978 gave rise to fresh proceedings before the S. D. M. , Nohar. In my view, there can be no doubt that the proceedings, which have been decided by the Sub-Divisional Magistrate, by his order dated July 17, 1978 were the same proceedings, which were initiated by the submission of the report by the Station House Officer, Police Station, Nohar on April 1, 1970. When the order dated February 6, 1978 was passed by the Additional Sessions Judge in the revisional jurisdiction, the order passed by the Sub-Divisional Magistrate dated February 12, 1975 was set aside and the case was remanded and the effect thereof was that the same proceedings again became pending before the Sub Divisional Magistrate which were pending before him on March 31, 1974. It cannot be held that the proceedings, after the remand order was passed by the Additional Sessions Judge on February 6, 1978, were distinct or separate proceedings. They must be considered to be a continuation of the original proceedings which were initiated with the submission of the report by the Station House Officer on April 1, 1970 and which were actually pending before the Sub-Divisional Magistrate, Nohar on April 1, 1974. In Radha Devi V. Mani Prasad Singh (1) proceedings under section 144 of the old Code were initiated by the Sub-Divisional Magistrate, Saharasa on February 20, 1973. Later on these proceedings were converted by the Sub-Divisional Magistrate into one under section 145 of the old Code on March 26, 1973. During the pendency of the proceedings before the Sub-Divisional Magistrate, the new Code came into force and the proceedings were transferred to the Executive Magistrate on July 18, 1974, who ultimately passed the final order. In these circumstances a question arose before a Full Bench of the Patna High Court as to whether the proceedings, which were initiated during the enforcement of the old Code and were pending on the date of the coming into force of the new Code, could be transferred to the Executive Magistrate and the Executive Magistrate could pass a final order in such proceedings. In that case, the question of interpretation of the provisions of section 484 (2) (a) of the new Code was considered with reference to pending proceedings under Sec. 145 Cr. P. C. and the following observations were made by the Full Bench:- "in my opinion, once the Magistrate makes an order as contemplated under sub-section (1) requiring the parties to put in their written statements and documents etc, and the copy of that order is served, as contemplated by sub-section (3), the stage of inquiry begins and the matter thereafter pending before a Magistrate is the matter regarding inquiry as to possession. It is not disputed that the order passed under sub-section (1) of section 145 was served upon the parties much earlier and it was also partly complied with before the new Code came into force. " ;