Badal and Another vs Maiku and Another

Mahavir Singh, J.—This is a revision by one of the parties to the proceedings u/s 145, Code of Criminal Procedure. The facts relevant to the points argued before me are that the applicant initiated proceedings u/s 145, Code of Criminal Procedure against the opposite parties on 7-7-1973 on the ground of apprehension of breach of peace about possession of a land in village Nasirpur, tahsil Haidergarh, district Barabanki. The learned magistrate after hearing both the sides upheld the case of the applicants and ordered that opposite party No. 1 would not interfere in their possession until he gets the matter decided in his favour by a competent Court. This order was passed on 23-8-1975.

The opposite party No. 1 Maiku filed a revision. The learned Additional Sessions Judge to whom the case was transferred held that the finding of the Magistrate was not warranted by the facts and he further held that it was opposite party No. 1 who was in possession on the date of the order. Accordingly he set aside the order of the Magistrate and further ordered that the disputed land be released in favour of the opposite party No. 1 and that the applicants will not interfere in his possession till they get the matter decided by a competent Court in their favour.

The applicants have now come in revision before this Court. It is contended that the learned Additional Sessions Judge had no power in revision to pass a final order and that if at all he was of the view he should have referred the matter to the High Court for final order. It is contended that the provision of the old Code of Criminal Procedure would govern the revision as the case was initiated at the time when the old Code was in force.

The facts in this connection are not disputed. It is admitted that at the time when the new Code of Criminal Procedure came into force, the application moved by the applicants u/s 145, Code of Criminal Procedure was pending. It was decided after the new Code had come into force. The revision was also filed naturally after the new Code of Criminal Procedure had come into force. The question is whether this revision filed against an order passed in accordance with the pending proceedings, when new Code of Criminal Procedure came into force, would be governed by the old Code of Criminal Procedure or by the new Code of Criminal Procedure. The general rule, as provided by Section 6 of the General Clauses Act, is that in case of procedural matters it is the Act which is in force at the time in question which will apply unless there is anything to the contrary in the new Act. Section 482(2) Code of Criminal Procedure has made certain provisions about pending matters. If, therefore, the case is covered by the provisions of this Sub-section, then certainly the old Code of Criminal Procedure would apply. Clause (a) of Sub-section (2) is relevant here. It provides that notwithstanding the repeal of the old Code of Criminal Procedure, 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 off, continued, held or made, as the case may be, in accordance with the provisions of the old Code. Thus, this sub-clause provides for only five classes of cases pending at the time when the new Code of Criminal Procedure came into force and not for any other matter even though it may arise out of any proceedings pending at that time.

Learned Counsel for the applicants contends that a revision is a continuation of the proceedings which was pending at the time the new Act came into force and, therefore, it should be covered by this sub-clause. This is not correct. A revision is not the continuation of the old proceedings to which it relates.

Learned Counsel for the applicant has not been able to cite any case law in support of his case. On the other hand the cases decided support the view taken by me above. Orissa High Court in Gopal Thakur and Another Vs. The State of Bihar, ; Delhi High Court in Bhupender Kumar Bhatnagar v. State 1978 CriLJ 1185, as well as Calcutta High Court in Dhanraj join v. B.K. Biswas 80 CWN 455 have taken this veryv view that a revision preferred after a new Act came into force, even though it refers to a proceedings pending at the time when the new Code came into force a new Code of Criminal Procedure, will apply. In the latter case the cases of Madhya Pradesh and Patna High Courts to the contrary were not approved and I agree with him on this point. The Patna High Court has impliedly overruled its earlier decision in a Full Bench case in Ram Beyas Singh and Others Vs. The State of Bihar, ; it held that even in the matter of appeal, if it is preferred in a case pending at the time when new Act came into force, the provision of the new Code would apply and not that of the old Code. It was clearly mentioned therein that in Section 482(2)(a) there was no provision for appeal or revision arising out of pending trials. Of course as regards appeals, a different view has been taken by the Gujarat High Court in Hiralal Nansa Bhavsar and Another Vs. The State of Gujarat, , but it was done because it was of the view that the appeal is a vested right and is a continuation of the old proceedings out of which it arises. The same, however, cannot be said about a revision. So in any view of the case the new Code was applicable to a revision which was filed after the new Code came into force. Hence the learned Additional Sessions Judge was competent to pass a final order.

In the result the revision has no force and is rejected.