1. Applicant Yadaorao Nathuji Kokude, a resident of Tkidi, Tahail and District Bhandara, has filed this revision Application challenging the order passed by the Additional Sessions Judge; Bhandara, on 24th of September 1974 in Criminal Revision No. 18 of 1974 where-under he set aside the order passed by thai Sub-Divisional Magistrate, Bhandara in favour of the applicant and directed thai the present non-applicants 2 and 3 were found to be in possession of the suit land on the date of the preliminary order with' in two months prior to the date of preliminary order and further directed the applicant not to disturb the possession of the non-applicants until they were law-Cully evicted from the suit lands.
2. The facts in brief are as under:
S. Noa. 101 and 102 totally admeasuring 12 acres 92 gunthas situated at village Parsodi belonged originally to one Chan-drabhagabai, who died sometimes in March 1971. During her lifetime Chandrabhagabai gifted these suit lands to Yogabhyasi Mandal of Nagpur on 30th of October 1967. The said Yogabhyasi Mandal sold these two fields, which would be hereinafter referred to as 'the suit lands', to the present applicant on 25th of January 1971 for Rs. 14,500. The non-applicants Nos. 2 and 3 claim tenancy rights in respect of the suit lands and they had also raised a further contention that they had also entered1 into a contract for purchase of these lands from the Yogabhyasi Mandal. However, it appears that they claim that they were in possession of the suit lands on the basis of the tenancy rights held by them.
3. On 5th of February 1973 Police Officer incharge of Parsodi Police Station filed a report before the Sub-Divisional Magistrate, Bhandara, praying that proceeding under Section 145 of the Code ol Criminal Procedure be taken as there was likelihood of dispute between the present applicant Yadaorao and opponents Antu and Gangaram in respect of the suit lands. A preliminary order came to be passed' on 26th of February 1973 by the Sub-Divisional Magistrate, Bhandara and it appears that after the preliminary order was passed, the suit lands were attached With standing crops thereon and pursuant to the order passed by the Sub-Divisional Magistrate, the Taluq Magistrate entered into possession on 1st of March 1973.
4. The Sub-Divisional Magistrate called upon the parties to file written statements. Both the parties namely applicant and non-applicants filed their written statements on 27th of April 1973 and 22nd of May 1973 respectively. Thereafter under the provisions of Section 145 Sub-clause (4) the Sub-Divisional Magistrate directed the parties to file affidavits and documents in support of their rival contentions. Accordingly the parties filed necessary affidavits and documents. The Sub-Divisional Magistrate, after perusal of those affidavits and documents, came to the conclusion that the present applicant Yadaorao was in possession on the date of preliminary order. Hence he passed the order directing that applicant Yadaorao be placed in possession and the Taluq Magistrate was directed to pay him the amount realised by the Taluq Magistrate after auctioning the standing crops.
5. Feeling aggrieved, the non-applicants 1 and 2 had filed Criminal Revision Application in the Court of Sessions Judge, Bhandara, under the provisions of the new Criminal Procedure Code which came into force on 1-4-1974, the order ot the Sub-Divisional Magistrate having been passed on 2nd of May 1974. The learned Additional Sessions judge, who heard the revision application, came to the conclusion that the Sub-Divisional Magistrate did not apply his mind to the facts as well as documentary evidence adduced on behalf of the present non-applicants who were the applicants before him. The learned Additional Sessions Judge has referred to various authorities to state that a duty is cast on the Sub-Divisional Magistrate under Sub-clause (4) of Section 145 of the Code of Criminal Procedure to peruse the affidavits and to peruse the affidavits means to go through them critically, to read them attentively and examine them critically in detail. However, he found that the Sub-Divisional Magistrate did not critically examine the affidavits, filed' by non-applicants 1 and 2. He further held1 that he disregarded those affidavits on very paltry reasons. In short, he held that the decision of the Sub-Divisional Magistrate was 'based only on the affidavits produced by the present applicant and as such he was entitled to interfere in such an order which is based not on the whole of the evidence adduced before the Court. He thereafter held that the applicant has filed1 affidavits of persons who own no land in the vicinity ot the suit lands. On the contrary, non-applicants 1 and 2 had led the evidence of persons who own lands in the vicinity. They were the adjacent neighbours of the suit lands. They were expected to know who was in possession and who was actually cultivating the suit lands. As there was no proper application of mind by the Sub-Divisional Magistrate, it appears that the Additional Sessions Judge assessed the evidence and came to the conclusion that the order passed by the Sub-Divisional Magistrate required interference. Accordingly he set it aside and passed the order stated above.
6. Feeling aggrieved the present revision application has been filed by applicant Yadaorao. Shri Kalele, the learned Advocate for the applicant, submitted that in a previous proceedings un- der Section 107 that were going on between the applicant and the non-applicants the Sub-Divisional Magistrate had directed the non-applicants 2 and 3 not to disturb the possession of the applicant. That order was passed on 11th of July 1972 and it was to remain in force for a period of one year. Shri Kalele submits that that order remained in force upto 11-7-1973 and as the date of the preliminary order is 23-2-1973, it should be presumed that the applicant was in possession. He drew my attention to page 7 of the proceedings to show the above stated order. In my opinion, this submission will have to be rejected outright as it is void of substance. The order appears to lie on page 7 of 'C file and it is passed in Misc. Criminal Case No. 2 of 1973. It appears -to have been passed under Section 112 of the Code of Criminal Procedure and it reads as under:
I, therefore, discharge non applicant Yadaorao Nathu Kokude and Rajaram Baoji Nighote and order party No. 2 Gangaram Jairam Parsodi and Antu Istari Parsodi to furnish a bond for Rs. 2,000 with a solvent surety in the like amount for a period of 12 months.
Reading Section 112 of the Code of Criminal Procedure it is clear that the action appears to have been taken by the learned Magistrate under Section 107 of the Code of Criminal Procedure. Because such an order under Section 112 of the Code could be passed when the Magistrate acts either under Section 107, 108, 109 or 110 of the old Criminal Procedure Code. Section 107 relates to taking action by the Executive Magistrate when he is informed that any person is likely to commit breach of peace or disturb public tranquillity or to do any wrongful act that may probably occasion a breach of the peace, or disturb the public tranquillity. Such an order is not passed under Section 145 of the Code of Criminal Procedure which deals with the disputes of possession in respect of immoveable property and they are dealt with in Chapter XII of the old Code of Criminal Procedure, Therefore, this order has no relevance to presume anybody's possession and such an order which is passed under Section 107 of the Code of Criminal Procedure (old), cannot fee said to protect anybody's possession and no inference could be drawn from it that the present applicant was in possession.
7. Shri Kalele then submitted that the disputes started between the parties before 1973. Police report was dated 4th February 1973. Proceeding was filed before the Sub-Divisional Magistrate who passed' the preliminary order on 26th of February 1973 and the proceeding waa continued1 before the Sub-Divisional Magistrate under the provisions of the old Criminal Procedure Code. Shri Kalele, therefore, urges that though the order was passed by the Sub-Divisional Magistrate on 2nd of May 1974 and though by that time new Criminal P.C. came into force on 1st of April 1974 still the revision should have been filed by the present non-applicants as per the provision of old Code. He submitted that the Additional Sessions Judge had no jurisdiction to entertain this revision application and. therefore, whatever order is passed by the Additional Sessions Judge is without jurisdiction and, therefore, liable to be set aside, Shri Kalele in support of his submission that the revision should have been filed under the provisions of the old Code of Criminal Procedure, relies upon the decision in Dhruvanathsingh Ramsuratsingh v. Shivanaresh Sharma of the Madhya Pradesh High Court Division Bench reported in , wherein the learned Chief Justice of that High Court speaking for the Bench has observed:
We are of the opinion that the old Code alone will apply in respect of appeals and revisions.
Shri Kalele, therefore, very strongly urged that the Additional Sessions Judge was in error in entertaining and deciding the revision as he had no jurisdiction to entertain and decide it. He, therefore, urged that such an order which is passed for want of jurisdiction being nullity should be set aside.
8. I have carefully considered the submissions of Shri Kalele. However, I am unable to persuade myself to agree with his submission that the learned Additional Sessions Judge had no jurisdiction to entertain the revision application In order to appreciate the submission urged by Shri Kalele, it is necessary to refer to the provisions of the old Code of Criminal Procedure as amended in this State. The proceedings under Section 145 were entertained by the Sub-Divisional Magistrate or Executive Magistrates who were specially empowered to deal and dispose of those matters under the Criminal P.C. as amended in this State. The District Magistrate who was empowered to entertain the revision application by the amended provisions of Section 438-A of the old Criminal P.C. was not in portion to conclusively decide and dispose of the matter in a revision application against the order passed under Section 145 of the Code of the Criminal Procedure. But if he felt that that order should be reversed or altered then he was entitled to report the matter for the orders of the High Court under the provisions of Section 438-A of the Code of Criminal Procedure as emended by this State and that way the matter used to reach the High Court or if the District Magistrate did not feel of making any such reference under Section 438-A and concurred with the decision of the Sub-Divisional Magistrate, then the aggrieved party was entitled to file a revision application in the High Court under Section 439 of the old Code of Criminal Procedure,
9. The new Criminal P.C. came into force on 1st April 1974 by Section 1, Sub-section (3) of the new Criminal P.C. The powers of revision under this Procedure Code are dealt with in Chapter XXX under the ahead 'Reference and Revision. Under the new Code Section 399 deals with Sessions Judge's powers of revision. It runs as under.-
(1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may toe exercised by the High Court under subsection (1) of Section 401.
(2) Where any proceeding by way of revision is commenced before a Sessions Judge under Sub-section (1), the provisions of Sub-sections (2), (3), (4) and' (5) of Section 401 shall, so far as may be, apply to such proceedings and reference in the said sub-sections to the High Court shall be construed as references to the Sessions Judge.
(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.
It will thus be seen that material change has been introduced by this new Criminal P.C. Under Section 399, revisional powers are dealt with by the Sessions Judge and it is not necessary for the Sessions Judge now to make a report for the orders of the High Court under Section 438 of the old Code of Criminal Procedure. He can dispose of the revision application. But Sub-section (3) lays down that the order passed by the Sessions Judge in such a revision application will be final in relation to such person who has made a revision application before the Sessions Judge and such person, who had made such revision application before the Sessions Judge would be bound by that order and no revision application made on behalf of such person shall be entertained by the High Court. It will thus be seen that as the order of the Sub-Divisional Magistrate was passed on 2nd day of May 1974, i.e. after coming into force of the new Criminal P.C. the question arises as to in which Court the aggrieved party should file a revision application. Under the provisions of the new Criminal P.C. under Section 399, as I have stated Above, the party is entitled to file a revision application against the order passed in proceeding though conducted according to the provisions of the old Code of Criminal Procedure. Therefore, what is necessary to be considered is whether under the provisions of the new Criminal P. C in a saving clause which has repealed the Criminal P. C of 1898, any provision is made in respect of filing of the appeals or revision application by the aggrieved party against the decisions which are passed by the Court after coming into force of the hew Criminal P.C. Sub-section (2) of Section 484 of the new Criminal P. C reads as under:
(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.
The proviso and Sub-clauses (b), (c) and (d) are not material for our purposes. It is, therefore, clear on reading Sub-section (2), Sub-clause (e) that if any appeal, application, trial, enquiry or investigation is pending then such appeal, application, trial, inquiry or Investigation shall be disposed of according to the provisions of the old Code of Criminal Procedure, Reading Section 484, it does not deal as to whether appeals or revisions against stitch orders, which are passed by the Courts after coming into force of that Act, are also to be filed .according to the provisions of the old Code of Criminal Procedure and this position Is accepted even by the Madhya Pradaah High Court: the judgment of which fau already been referred to above. The Chief Justice of the Madhya Pradesh High Court, who has spoken for the Bench, after stating the facts of that particular case and referring to the provisions of Section 484 of the new Criminal P.C. bad observed as follows:
Therefore, all pending cases on 1-4-I0T4 are to be dealt with in accordance to the provisions of the Code of Criminal Procedure, 1898. The further question arise whether the right of appeal or revision against such judgments or orders, which are delivered in cases, which were pending on 1-4-1974 are to be governed by the old Code or the new Code. The new Code does not make any provision in this behalf.
10. The learned Chief Justice, thereafter proceeds to examine the provisions relating to appeals, revisions and references under the new Code of Criminal Procedure. After reproducing the various provisions of Sections 373, 374, 395, 397, 398, he observes on page 412 of the report:
Therefore the question is whether these Sections 1 relating to appeals and revisions are applicable to cases pending on 1-4-1974 the trial of which is required to be held according to the provisions of the old Code. There is no doubt that a procedural loss can be made to operate retrospectively in the sense so as to apply k to pending cases. But where the legislature ted made a specific provision that all pending oases will be governed by the old Code, we are of the opinion that, the old Code alone will apply in respect of appeals and revisions. A right of appeal is a vested right, which cannot be affected, adversely unless the legislature makes a special provision in that behalf. There being no such special provision, the right of appeal will be governed by the old Code and the provisions of the new Code relating to appeals and revisions will apply only to those cases which were not pending on 1-4-1974 but which have been instituted on 1-4-1974 or onwards.
It will be seen from the facts of that ease that a proceeding under Section 406, I.P.C. was instituted against the accused-petitioner and was pending before the Magistrate on 1-4-1974. The accused made In application before the Magistrate under Section 94 of the old Code of Criminal Procedure for production of documents. The Magistrate allowed that application and directed respondent complainant to produce those documents by his order dated- 24-9-1973. On 19-4-1974 respondent complainant moved the Magistrate for dispensing with the production of documents. The trial Magistrate reviewed the order and accepted the request of the respondent complainant on 295-1974. Against this order petitioner filed a revision application in the Sessions Court. The Sessions Court dismissed the revision application. Aggrieved by that order petitioner filed Special Civil Application under Article 227 of the Constitution of India for a writ of certiorari.
11. These facts would show that a revision application was filed against an interlocutory order passed by the Magistrate in a pending proceeding. These facts are distinguishable from the facts of the present case inasmuch as the application under Section 145 of the Code of Criminal Procedure was finally disposed of by the Sub-Divisional Magistrate on 2nd May 1974. These observations, therefore, are not applicable to the facts of the present case. I am not here called upon to decide as to whether any revision application lies against an interlocutory order passed in a pending criminal proceeding and by which Code it would be governed.
12. I find that the observations of the Chief Justice of the Madhya Pradesh High Court reproduced above are made treating the right of appeal and right of revision on par. The learned Judges have (held that the right of appeal is a vested right and it would not be adversely affected unless the legislature has made any special provision in that behalf and in that right they held that revision application would lie to the High Court under the old Code of Criminal Procedure.
13. In my opinion neither under the old Code or new Criminal P.C. a right is conferred on any party to invoke the revisional jurisdiction of the High Court. Therefore, no vested right of the party is affected by the changes effected in the new Code which gives powers to Sessions Judges to call for and examine the record of any proceeding before any inferior criminal Court situate within their local jurisdiction as provided in Sections 397 to 399 of the new Code. In respect of the revisional powers I may refer to the observations of the Supreme Court in Pranab Kumar Mitra v. State of West Bengal, reported in : 1959CriLJ256 , which are as under -
The revisional powers of the High Court vested in it by Section 439 of the Code, read with Section 435, do not create any right in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognised1 rules of criminal jurisprudence, and that Subordinate Criminal Courts do not exceed their jurisdiction or abuse their powers vested in them by the Code.
It will be clear, therefore, that to file a revision is not a right in the litigant and as I have stated earlier, Section 484 does not save such a right of litigant to say that he has a right to file revision application against an order which has been passed after coming into force of the new Code by following the provisions of the old Code of Criminal Procedure. In my opinion, as the decision was given after coming into force of the new Criminal P. C, in the instant case, the non-applicants filed a revision application in the Sessions Court as provided under Section 399 of the new Criminal P. C, They were perfectly justified in doing it and the learned Additional Sessions Judge was also perfectly justified in entertaining it after it was made over to him for disposal by the learned Sessions Judge, Bhandara. I, therefore, hold that there is no merit in the contention of the learned Advocate that the Additional Sessions Judge, Bhandara, or the Sessions Judge, Bhandara had no initial jurisdiction to entertain the revision application.
14. Shri Kalele, the learned Advocate for the applicant, then contended that in the instant case there was former proceeding under Section 145 of the Code of Criminal Procedure which reached this Court on a reference by the Additional District Magistrate and this Court on 8th of January 1973 accepted that reference and directed the Sub-Divisional Magistrate to decide the matter according to law. It was, therefore, urged by Shri Kalele that the Sub-Divisional Magistrate ought to have proceeded' with the old matter and should not have proceeded to decide the new matter which was entertained by 'him on the basis of a police report, dated 4th February 1973. In my opinion, this contention also cannot be accepted in view of the factual position submitted by Shri Chandurkar, the learned Advocate for the non-applicants. Applicant has also admitted in paragraph 6 of his revision application that after the remand order, on 26th February 1974 the parties filed Pursis before the Sub-Divisional Magistrate to file the old proceedings. It is further seen that the parties continued the new proceedings. Preliminary order in the new proceedings which were pending before the S.D.M. was passed on 26th of February 1973. Therefore, this contention also merits no substance.
15. Shri Kalele then submitted that the learned Additional Sessions Judge did not correctly exercise (his powers as a revisional Court. He urged that there was a finding of fact in respect of possession arrived at by the learned Sub-Divisional Magistrate. Such a finding of fact should not have been lightly interfered with by the learned Additional Sessions Judge. He further urged that even if this Court came to the conclusion that the Additional Sessions Judge could come to a different conclusion and interfere with the finding of fact, still the affidavits and documents relied upon by the learned Additional Sessions Judge to arrive at a contrary conclusion do not reflect the correct position as regards the nature of possession of the parties. He submitted that the learned Additional Sessions Judge has referred to Patwari's report. This Patwari was not examined by anybody. This report of the Patwari was filed by the police along with the papers. He urged that it was not admissible in evidence, and, therefore when reliance was placed by the Additional Sessions Judge on such inadmissible piece of evidence, the order of the Additional Sessions Judge suffers from a legal infirmity and that can be corrected' by this Court in Its revisional jurisdiction. It was further submitted that the entries in the Khasra, viz. crop statements from 1967 to 1971-72 have been relied' upon by the learned Additional Sessions Judge to hold that the non-applicant were in possession of the land, He drew my attention to the entries in the name of Chandrabhagabai, the owner, in column No. 1 of those Khasras. He submits that Chandrabhagabai gifted' this property long before. She subsequently died. Still the entries are not corrected. That would go to show that all the entries made in the Khasra were mechanical entries, made not after examining the legal and actual position but were made mechanically and without application of mind Therefore, he urged that the learned Additional Sessions Judge ought not to have relied upon this evidence to hold that the non-applicants were in possession. He also drew my at- tention to the affidavits filed on behalf of the non-applicants especially to submit that they are mechanical affidavits. They show that the deponents have no personal knowledge. They have come forward to say in favour of the non-applicants as he wants them to say. It was urged that though their ages are 35, still they state that they know the Wahiawa of non-applicants for the last 25 to 30 years. This statement, urged Shri Kalele, itself goes to show that these persons cannot be held to be reliable and, therefore, such an evidence ought not to have been relied upon by the Additional Sessions Judge, For all these reasons, he urged that this Court should revise- the order passed by the learned Additional Sessions Judge.
16. I am unable to agree with the submissions of the learned Advocate, It is true that while dealing with the affidavits and documentary evidence of both the parties the learned Additional Sessions Judge has referred to Patwari's report. But if his order would (have been based simply on such an inadmissible evidence, then certainly it could have been struck down. But from the order, it is seen that he has referred to it as one of the- grounds. But mostly he has relied upon other pieces of evidence, viz, the affidavits of the two persons. Vishwanath and Rajaram and the entries in the crop statements. I have already stated that the Additional Sessions Judge has given very cogent reasons why he felt of interfering with the order of the Sub-Divisional Magistrate. I need not repeat those reasons. He has stated that, the learned Sub-Divisional Magistrate while dealing with the possession of the applicant has mainly relied upon the judgment given by the Additional Tahsildar in Tenancy case- and also of the Deputy Collector, Land Records. This is evident, from paragraph 8 of the judgment of the Sub-Divisional Magistrate. The learned Additional Sessions Judge, after noting this fact, held that the judgments did not survive because they were set aside by the order of the Tribunal. He has also referred to the fact that the present applicant has filed a writ petition before the High Court. He has further pointed out that the applicant was unable to 'produce any affidavit of a neighbouring land holder or any person from that village where the suit lands are situated, to show that he was in possession of the suit lands. As against it, he has referred to the Khasra entries and the affidavits of the neighbours to come to the conclusion that the non-applicants were in possession, The entries in the crop statements are not conclusive but under the provisions of the Indian Evidence Act the Court may draw presumption under Section 114 to hold that public officer has done his duty in the regular course of his business. As regards the entries in the crop statements inspection rules under the Land Revenue Code provide that twice in every year immediately after the sowing season the inspection of the crops and the persons who sow the crop has to be entered by the Patwari in the crop statements. On the basis of those entries from the year 1967-68 to 1971-72 certain entries are made showing what crop was grown in the suit lands and who have grown that crop. Those entries as I have stated, are made by the Patwari in the regular course of his business and according to rules. The Court may draw a presumption under Section 114. This is certainly a rebuttable presumption. Only circumstance pointed out by Shri Kalele not to accept this evidence is that Chandrabhagabai's entry remains in column No. 1 though she has gifted the suit lands and she died thereafter. Chandrabhagabai is the owner and unless an entry changing her name in the record of right is made that entry cannot be entered into Khasra. It is not shown that such an attempt was made nor any evidence is adduced on that behalf. Therefore, I am inclined to hold, that the learned Additional Sessions Judge was right in relying upon those entries and drawing a presumption that they have been correctly made and, therefore, they show that the non-applicants are in possession. In addition to this evidence he has relied upon the evidence of1 the two witnesses who are the adjacent owners. It is true that those persons, though their age is 35 years, have exaggerated by stating that they see the non-applicants being in possession since 25 to 30 years. But that kind of exaggeration would not render their evidence stated on oath in an affidavit as false; it is seen that those two persons own adjacent lands. Vishwanath owns S. No. 104, Rajaram owns S. No. 10fi though that land stands in the name of his father. These persons being adjacent owners are expected to know as to who was in the cultivation of the suit lands from at least 1970 to 1973 and they have stated about it. Therefore, I am inclined to hold that the learned Additional Sessions Judge has not committed any error in accepting that evidence.
17. In the result, rule discharged. Interim stay vacated.