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Nahar Singh and ors. Vs. Preetam Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B Criminal Revision No. 226 of 1981
Judge
Reported in1982WLN70
AppellantNahar Singh and ors.
RespondentPreetam Singh and ors.
DispositionApplication dismissed
Cases ReferredIn Lala Ram and Ors. v. Dalipsingh
Excerpt:
.....by the additional sessions judge in revision on february 6, 1978 with the direction that the sub-divisional magistrate should take the affidavits of the parties afresh, the earlier proceedings under section 145 cr. p.c. which were purported to have been concluded by the order of the sub-divisional magistrate dated february 12, 1975 were revived and the same earlier proceedings continued to remain pending, which were initiated before the commencement of the new code. therefore, such proceedings were to be completed and disposed of in accordance with the provisions of the old code.;as such the proceedings under section 145 cr.p.c. must be con-sidered to be 'pending' at the time when the new code came into force and they had to be 'finally disposed of by the sub-divisional magistrate in..........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 in continuation 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.....
Judgment:

Dwarka Prasad Gupta, 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 (here in after 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 112 bighas 7 biswas, were allotted by the Custodian Department to Khanumal alias Khiyamal, Maganmal, Chimanlal and Deepa 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 September 29, 1969 to Kapoor Singh, Karnailsingh and Nihalsingh, who will here in after be described as 'party No. 2'. But Nahar Singh and Polasingh, who will here in after 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 biswis 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. There after, 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.

3. 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 (here in after 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, an 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 there upon 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 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 there of was true to their belief.

4. Thus, the proceedings were remanded to the Sub-Divisional Magistrate, who allowed both the parties to file fresh affidavits and there after redecide 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 there of 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 part 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 his order dated May 2, 1981. There after, the present application under Section 482 Cr.P.C. has been filed by party No. 1 in this Court.

5. The main contention advanced by the learned Counsel for the petitioners in this case was that after the Additional Sessions Judge, Sriganganagar 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 in continuation 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 and 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 councel for the non-petitioners that after the preliminary order was passed under Sub-section (1) of Section 145 C.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.

6. 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) Not with standing 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, (here in after 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

7. Instead of repealing the old Code completely, the aforesaid provisions were kept alive for the disposal, continuation and competition 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 affidavits. 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.

8. 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 give 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 there of 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.

9. In Radha Devi v. Mani Prasad Singh and Anr. : AIR1980Pat41 proceedings under Section 145 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 Section 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 state of inquiry begins and the matter there after pending before a Magistrate is the matter regarding inquiry as to possession. It is not disputed that the order passed under Sub-section (]) of Section 145 was served upon the parties much earlier and it was also partly complied with before the new code came into force.

10. It was held in the aforesaid case that by enacting subsection 2(a) of Section 484 of the new Code, the Parliament clearly contemplated to provide a saving provision that not with standing the repeal of the old Code, for transitional period, all those clauses of the Code continued to exist for the continuance and disposal of the various types of cases enumerated in Clause (a) of Section 484(2) of the new Code.

11. Section 484(2)(a) significantly uses the expression 'disposal' which would be construed as final disposal referred in that provision. Section 484 only varies or modified a part of Section 6 of the General Clauses Act, 1897, keeping the other provisions there of alive and intact. Only in two respects a departure from the provisions of Section 6 of the General Clauses Act was contemplated by the Legislature which has been clearly indicated in Section 484(2). In Hiralal Nansa Bhavsar and Anr. v. The State of Gujarat 1976 Cr. L.J. 84, a Full Bench of the Gujarat High Court observed as under:

The words 'disposed of' must mean finally disposed of. The proviso to the said sub-section helps us to construe the said words. According to the proviso committal proceedings pending at the commencement of the new Code are required to be dealt with and disposed of in accordance with the new Code. The words 'disposed of' used in this proviso clearly mean that the disposal contemplated there by is the final disposal of the proceeding. It is obvious, therefore, that the words 'disposed of' when used in the main part of Sub-section (2) (a) must mean disposed of finally.

12. If the expresion 'disposed of' has to be construed as finally disposed of then the proceedings under Section 145 Cr.P.C. were required to be finally disposed of by the Sub-divisional Magistrate in accordance with the provision of the old Code and as if the new Code had not come into force.

13. According to the general principles applicable to the repeal of earlier provisions by a later enactment, it is settled law that unless the law which supersedes an earlier one expressly or impliedly puts an end to an earlier statute or law, the rights of the parties accruing under the superseded enactment cannot be taken away although, in matters of procedure the provisions of new law are normally applicable, unless there is a provision to the contrary contained there in. In the new Code, by virtue of the saving clause contained in Section 484(2)(a), and applications, appeals, trial, enquiry etc. have to be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the old Code. I, therefore, hold that the proceedings under Section 145 Cr.P.C. which were initiated upon the police report dated April 1, 1970 and which were pending on April 1, 1974 were to be disposed of according to the provisions of the old Code. The provisions of the new Code could not be made applicable to such proceedings initiated before the commencement of the new Code and pending immediately before such commencement. After the order of remand was passed by the Additional Sessions Judge in revision on February 6, 1979 with the direction that the Sub-divisional Magistrate should take the affidavits of the parties a fresh, the earlier proceedings under Section 145 Cr.P.C. which were purported to have been concluded by the order of the Sub-divisional Magistrate dated February 12, 1975 were revived and the same earlier proceedings continued to remain pending, which were initiated before the commencement of the new Code. Therefore, such proceedings were to be completed and disposed of in accordance with the provisions of the old Code.

14. In Mehboob Raza Khan v. Mohd. Shah Khan and Ors. 1979 Cr. L.J. 228 pro-ceedings under Section 145 Cr.P.C. were initiated and a preliminary order was passed on December 22, 1971 and the subject-matter of dispute was attached, and the parties were directed to file their written-statements and affidavits in support of their respective claims. After considering the material on record, the Sub-divisional Magistrate found it difficult to decide as to which party was in possession of the disputed land on the date of the preliminary order and within two months before it was passed. He, therefore, made a reference to the Civil Court under Section 146(1), Cr.P.C. (Old). This reference was pending before the Civil Court when the new Cr. P.C. came into force on April 1, 1974. The reference was decided by the Civil Court on March 19 1976 and on the receipt of the finding of the Civil Court, the Sub-divisional Magistrate passed a final order on April 30, 1976 in confirmity with the finding given by the Civil Court. In these circumstances, the question which arose for consideration was as to whether the proceedings under Section 145 Cr.P.C. should be considered to be 'pending' when the new Code came into force. It was held by a bench of the Allahabad High Court that a reference made under Section 146(1) of the old Code was a continuation of the proceedings under Section 145 of the old Code and as such the proceedings under Section 145 Cr.P.C. must be considered to be 'pending' at the time when the new Code came into force and they had to be 'finally disposed of by the Sub-divisional Magistrate in accordance with provisions of the old Code. Therefore, the Sub-divisional Magistrate appears to be right in taking into consideration the written-statements of (he parties and the documents filed by them and the affidavit produced by them before him and deciding on the basis there of that party No. 2 was in possession over the disputed land, on the date the preliminary order was passed.

15. It is also significant to observe that after the Additional Sessions Judge accepted the revision petition filed by the petitioner Naharsingh by his order dated February 6, 1978 and the earlier order passed by the Sub-divisional Magistrate dated February 12, 1975 was set aside, the learned Additional Sessions Judge No. 1 Hanumangarh directed the Sub-divisional Magistrate to allow both the parties an opportunity to file afresh properly verified affidavits and thereafter to redecide the matter under Section 145 Cr. P.C. after affording an opportunity of hearing to both the parties. As the petitioner Naharsingh did not make any grievance at that stage, before the learned Additional Sessions Judge, that the new Code should be made applicable to the remanded proceedings and evidence of the witnesses produced by the parties should be recorded by the Sub-divisional Magistrate, instead of deciding the 145 Cr.P.C. proceedings on the basis of affidavits and documents etc. Neither any such objection appears to have been taken by the petitioners before the Additional Sessions Judge nor the procedure adopted after the remand was challenged before the Sub-divisional Magistrate. Even the petitioner and other members of the first party proceeded to file their affidavits afresh without any demur before the Sub divisional Magistrate. The second party also filed affidavits and the matter was there after heard and redecided by the Sub-divisional Magistrate on July 17, 1978. At that time also no objection was taken by the petitioners that the evidence should be recorded in accordance with the provisions of Sub-section (4) of Section 145 of the new Code and the affidavits should not be considered at all. No such objection appears to have been taken by the petitioners even before the Additional Sessions Judge in the revision petition which was decided on May 2, 1981. Thus, it is for the first time that such an objection, that the proceedings after remand were not conducted in accordance with the procedure prescribed in Sub-section (4) of Section 145 of the new Code, has been taken in these proceedings under Section 482 Cr. P C. before this Court. Id my view, even if for the sake of argument it be considered that the learned Counsel for the petitioner may be right in his contention, it would be surely an irregularity. There has been no failure of justice nor any prejudice has been caused to the petitioner or to the other members of the first party. Such an irregularity, if any, was curable under Section 465 Cr.P.C.

16. In Lala Ram and Ors. v. Dalipsingh AIR 1965 All 254 a similar question arose before a Division Bench of the Allahabad High Court. Section 145 Cr.P.C. as it stood prior to the amendment introduced by the Criminal Procedure Code Amendment Act, 1955, contained a provisions for adducing oral evidence and the Magistrate was required to decide the application under Section 145 Cr P.C. after considering such evidence along with documents and written-statements filed by the parties. It was by the Amendment Act of 1955 that procedure relating to the proceedings under Section 145 was simplified and it was provided that instead of adducing oral evidence, the parties should be directed to produce, affidavits of their witnesses besides documents, in support of their respective claims. However, in the aforesaid case, which arose after the Amendment Act of 1955 had come into force and the changes had been affected in Section 145 Cr. P.C., the Magistrate instead of directing the parties to file affidavits in support of their respective claims, merely directed the parties to file their written statements and on the date fixed for hearing the parties adduced oral evidence, which was recorded by the learned Magistrate, who decided the proceedings under-section 145 Cr. P.C. after taking into consideration the oral evidence led by the parties besides other material on record. The party against whom the decision was given by the learned Magistrate, raised the question in revision petition before the High Court that the procedure prescribed by the amended provisions of Section 145 Cr.P.C has not been followed and the examination of oral evidence was illegal and on that ground it was argued that the order passed by the Magistrate should be set aside. Their Lordships of the Allahabad High Court observed that the fact that no objection was taken either by the parties or by the court when the parties adduced oral evidence and the fact that no prejudice was caused on the ground that the statements of all the witnesses were recorded instead of taking their affidavits and it was observed that it was merely a procedural irregularity, which was curable under Section 537 of the old Cr.P.C.

17. In the first instance, no objection was raised by the petitioners at any stage, as mentioned above; and secondly no prejudice was caused to them on account of the fact that affidavits were accepted in evidence by the Sub-divisional Magistrate of the witneses of both the parties. In these circums-tances, I am unable to hold that the proceedings in the case were vitiated on account of the non-recording of oral evidence of the parties. It may also be observed that the conduct of the petitioner in producing affidavits of his own witnesses goes to show that the petitioner was also a willing party to the procedure adopted by the original court. Thus, even if it be held that the new Code might be applicable to the remanded proceedings and oral evidence should have been recorded there in, but instead of taking oral evidence if affidavits were given by both parties of their own free-will, which were accepted by the court, then it can only be said that there was a mere error of procedure, which has not occasioned any failure of justice.

18. It was lastly argued by the learned Counsel for the petitioners that the affidavits, which were filed after the remand order was passed by the Additional Sessions Judge on February 6, 1978, were of the same type which were filed earlier and that they too should have been rejected. I am unable to agree with this contention as well. After carefully looking into the affidavits, I find that the affidavits have been properly verified and the deponents have verified the affidavits on the basis of their personal knowledge. The question as to what weight should have been given to the affidavits is essentially a question of fact and as both the courts below have concurrently found that the second party was in possession of the land in dispute on the date when the preliminary order was passed, it is not necessary for us to go into the question on merits again, in these proceedings under Section 482 Cr.P.C.

19. In this view of the matter, there is no force in this application and the same in dismissed.


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