Bishan Datt vs Mohan Chandra and Another

V.N. Varma, J.—This revision is essentially directed against an order dated 29-4-1974 passed by Munsif, Almora in proceedings u/s 146 Code of Criminal Procedure (Old).

It appears that there was dispute between the parties in respect of plot No. 265 situate in village Raturath Patti Palla Baurar district Almora. That dispute was such as was likely to cause a breach of peace and, therefore, proceedings u/s 145 Code of Criminal Procedure (Old Code) were initiated in the court of S.D.M. Baramandal, Almora. The Sub-Divisional Magistrate passed a preliminary order and attached the disputed plot. The parties were called upon to put in written statements of their respective claims as respects the facts of actual possession of the subject of dispute. They were also called upon to produce evidence in support of their respective cases. Accordingly, they filed their written statements and also produced evidence in support of their respective cases. The learned Magistrate was, however, unable to decide as to which of the two parties was in possession of the disputed plot on the date the preliminary order was passed and within two months prior to that. Accordingly, he referred the matter to civil court to decide the question as to which party was in possession of the subject of dispute on the relevant date. The matter game up for decision before Munsif, Almora. In the meantime the new Code of Criminal Procedure came into force. The learned Munsif returned the case to the court of Sub-Divisional Magistrate, Baramandal saying that after the coming into force of the New Code no jurisdiction was left in him to decide the reference u/s 146 Code of Criminal Procedure (Old). Aggrieved, the applicant has come up in revision to this Court.

I have heard the learned Counsel for the applicant and have also perused the material on record. In my opinion the order passed by the court below is incorrect and, therefore, not sustainable under law. u/s 484 of the New Code he continued to have full power to decide the reference which had been pending in his court. Section 484 says that if, immediately before the date on which the 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 Old Code. The reference in the court of Munsif, Almora, was nothing but a projection of the application u/s 145 which had been pending when the New Code came into force. The application u/s 145 therefore, had to be disposed of under the Old Code. In the same manner the reference also had to be disposed of under the Old Code. The learned Munsif was definitely wrong when he returned the record of the case to Sub-Divisional Magistrate, Baramandal, without disposing of the reference that had been pending before him. The learned Munsif should have retained the reference on his file and disposed it of in accordance with law.

In the result I allow this revision and set aside the impugned order dated 29--4--1974. The learned Munsif is directed to dispose of the reference in question in accordance with law.