A.N. Banerjee, J.@mdashThis Rule is for quashing of a proceeding u/s 145 of the Code of Criminal Procedure pending in the Court of an Executive Magistrate. On September 8, 1974, the opposite party No. 2 describing himself as an Assistant Registrar, Co-operative Societies, Government of West Bengal, functioning on deputation as the Executive Officer of Dr. B.C. Roy Co-operative Colony Society Ltd. filed an application under Sections 144, 107/114/173(4) of the Code of Criminal Procedure against the Petitioner and another before the Sub-divisional Magistrate, Barrackpore. On such petition, the learned Magistrate called for the report from the police On February 11, 1974, the learned Magistrate drew up a proceeding u/s 145 of the Code of Criminal Procedure directing both the parties to file affidavits, objections, documents, etc., in respect of actual possession of the land concerned. The learned Magistrate also attached disputed land and appointed Officer-in-charge, Baranagore P.S., as Receiver. As against such order of the learned Magistrate a revisional application was moved on behalf of the 2nd parties, but by an order dated April 30, 1974, the learned Additional Sessions Judge rejected it. After the record came back the learned Magistrate recorded an order dated June 1, 1974, directing both the parties to appear on July 9, 1974, for further orders. It appears that on June 1, 1974, the record was put up before Sri T.K. Ganguly, an Executive Magistrate. Evidently Sri Ganguly on that day was doing the file of Sub-divisional Magistrate. On the next day, i.e. July 9, 1947, another Magistrate directed the record to put up before Sri Ganguly. In order to make such an order valid Sri V. Subramanium, Sub-divisional Magistrate, passed an order dated August 16, 1947. By the said order he withdrew the case to his file and transferred it to Sri T.K. Ganguly, an Executive Magistrate, for disposal. Thereafter, certain other petitions were filed before transferee Magistrate and we are not concerned with such petitions for the present. What is now being contended before me is that Sri Subramanium, learned Sub-divisional Executive Magistrate, have had no jurisdiction to withdraw the proceeding to his file and then to transfer it to the file of another Executive Magistrate. It is also being contended that the present transferee Magistrate Sri Ganguly is not competent to dispose of the proceeding.
2. Mr. N.C. Banerjee, learned senior Advocate, with Mr. Arun Mukherjee appearing for the Petitioners, contended before me that since the proceeding u/s 145 of the Code of Criminal Procedure was pending from before the Code of Criminal Procedure, 1973, came into force, it would be guided and governed by the provisions of the old Code, i.e. Code of Criminal Procedure, 1898 and that as such the Sub-divisional Executive Magistrate had no power to withdraw the proceeding to his file and then to transfer it to an Executive Magistrate for disposal. Similarly, the Executive Magistrate to whom the proceeding was transferred will have no jurisdiction to deal with it. Mr. Banerjee submitted further that in view of the revisional application against the order dated February 11, 1974, drawing up proceeding u/s 145 of the Code was rejected by the learned Additional Sessions Judge, he was not pressing his other objections. Mr. Chaitanya Ch. Mukherjee, learned Advocate with Mr. Sisir K. Datta appearing for the added opposite party No. 3, submitted that pending proceeding u/s 145 of the Code of Criminal Procedure, 1898, could not either be obliterated or remain in vacuum after introduction of the Code of Criminal Procedure, 1973. According to him, the learned Sub-divisional Executive Magistrate has power u/s 411 of the Code of Criminal Procedure, 1973, to withdraw any case from, or recall any case which he had made over to any Magistrate subordinate to him and dispose of such proceeding himself or refer it for disposal to any other Magistrate. Mr. S.K. Palit, learned Advocate appearing for the State, submitted that there was nothing wrong or illegal in the withdrawal of the case to the file of the learned Sub-divisional Magistrate and then in the transfer of it to another Magistrate. It is thus seen that the main point is what will happen to a proceeding u/s 145, Code of Criminal Procedure, 1898, pending on April 1, 1974 i.e. on the date the Code of Criminal Procedure, 1973, came into force. Section 484 of the new Code repeals the old Code but made provisions relating to pending matters. Thus, Sub-section (2a) of Section 484 lays down:
Notwithstanding such repeal, if, immediately before the date on which this Code comes into force, there is any appeal, application, 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 (V of 1898), is in force immediately before such commencement as if this Code had not come into force.
There is a proviso to this sub-section which says that every enquiry under chap. 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. Under Clause (b) of Sub-section (2) of Section 484, all notifications published, proclamations issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the old Code and which are in force immediately before the commencement of this Code, shall be deemed, respectively, to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of this Code. It is thus apparent from the aforesaid provisions of Section 484 that a proceeding u/s 145 of the old Code which was pending on the date of the commencement of the new Code will have to be disposed of in accordance with the provisions of the old Code on the footing as if the new Code had not come into force. In a recent case in the Supreme Court a question arose whether a revisional application which was pending before the Sessions Judge when the new Code came into force could be disposed of by the revisional Court in accordance with the provision of Section 399(3) of the new Code. The Supreme Court laid down that in view of the provision of Section 484(2a) of the new Code Section 399(3) of the said Code was not applicable to such pending revisional application and that it would be governed by the provision of old Code: See
Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
Section 5 and Section 484 of the new Code taken together would give jurisdiction to the Sub-divisional Magistrate to withdraw a case u/s 145 and then to transfer it to a Magistrate subordinate to him in accordance with the provision of old Code if such proceeding was pending on the date of the commencement of the new Code. In this view of the matter, I do not think that the Sub-divisional Magistrate, Barrackpore, have had no jurisdiction to withdraw the present case to his file and then to transfer it to a Magistrate subordinate to him. There can be no manner of doubt that the Magistrate to whom the case was transferred was enjoying the powers of a First Class Magistrate prior to the coming into force of the new Code. Accordingly, I find that there is no substance in the objection raised by the Petitioners.
3. In the result, the Rule is discharged. Let the records go down immediately.
