JUDGMENT Hari Lal Agrawal, J.

1. This application in revision is by the member of the second party against the final order dated 22nd September, 1976, passed by Shri N. Jha, Executive Magistrate, Saharsa, in a proceeding initiated on 26th May, 1973, under the provisions of Section 145 of the Code of Criminal Procedure, 1898 (hereinafter to be referred to as the 'old Code'). During the pendency of the proceeding, the old Code was repealed by the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the 'new Code') and the proceeding was decided by the aforesaid Shri N. Jha, an Executive Magistrate, who is a creature of the new Code and a competent authority to initiate and dispose of such a proceeding under the same.

2. The question that has been canvassed for our consideration is as to whether an Executive Magistrate was the proper authority who could pass the final order in such proceedings which were initiated during the enforcement of the old Code and were pending on the date of coming into force of the new Code. In other words, the argument is that notwithstanding the coming into force of the new Code, the pending proceeding should be concluded by the same class of Criminal Court which was empowered under the provisions of the old Code to initiate and decide such a proceeding.

3. A Bench of this Court in the case of Somari Rai v. Raghunandan Pd. Sharma (1977 BBCJ 26) has taken the view that proceedings under Section 145 pending immediately before the commencement of the new Code came into force can be disposed of by an Executive Magistrate as provided under Section 145 of the new Code. The correctness of this decision was doubted by various learned Judges of this Court and they referred the matter to larger Bench, A batch of such cases came before a Bench consisting of Shambhu Prasad Singh, J. and myself and in view of the importance of the question and to resolve the same, we by our order dated 26th November, 1977, directed for placing this case before Hon'ble the Chief Justice for constituting a larger Bench and decided and disposed of the other cases of the batch on different points. In this view of the matter and for the view that I propose to take in this case, it would not be necessary to enter into the controversial question of facts with respect to the merits of the claims of the respective parties. I may, however, state very briefly the facts leading to the initiation of the proceeding.

4. The area in dispute in this case is a little over 10 bighas 5 kathas situate in villages Bela and Panchagachia, in the district of Saharsa. On the basis of a police report dated 20th February, 1973, the Sub-Divisional Magistrate, Saharsa, initiated a proceeding under Section 144 of the old Code by his order dated 30th March 1973. Both the parties appeared and filed their show cause. After hearing the parties, the Sub-Divisional Magistrate converted the aforesaid proceeding into one under Section 145 of the old Code by his order dated 26th March, 1973. A copy of the proceeding was also served on both the parties. By his order dated 27th June, 1973, the learned Sub-Divisional Magistrate had also directed the parties to put in their written statements and to file their relevant documents and evidence in support of their respective claims. The second party (petitioner) filed his written statement on 19th February, 1974, whereas the first party (opposite party) filed their written statement on 15th June, 1974, after coming into force of the new Code. The proceeding was transferred to the Executive Magistrate on 18th July, 1974, after the new Code came into force, who ultimately passed the final order under challenge. It may also be mentioned that in June 1973, both the parties had filed petitions that the disputed lands be settled by auction, but the learned Magistrate instead had appointed a receiver. No other fact is necessary to be noticed to answer the controversy.

5. Section 6 of the old Code provided the following five classes of criminal courts, besides the High Court and the Courts constituted under any law other than the old Code :--

I. Courts of Session;

II. Presidency Magistrate;

III. Magistrates of the first class;

IV. Magistrates of the second class;

V. Magistrates of the third class;

(a) to a Magistrate of the first class, shall be construed as a reference to a Judicial Magistrate of the first class;" And perhaps on this account, it was contended that the proceeding should have been decided by a Judicial Magistrate of the first class. I am constrained to observe that the argument advanced was entirely erroneous and misconceived. Nonetheless, the learned Judge rejected the argument on an entirely different ground, namely, that the expression "any enactment" occurring in the above quoted section of the new Code did not include the old Code. It is not possible for me to reconcile with the above view expressed by the learned Judge inasmuch as the old Code was also an enactment passed before the commencement of the new Code. I do not, however, think it necessary to dilate upon this point any further, as in my view, the correct answer to the proposition lies in the savings provision itself contained in Section 484 of the new Code which seems to have escaped due attention in Somari Rai's case. Clause (a) to Section 484 (2) clearly provides that any 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 as in force immediately before the commencement of the new Code, as if this Code had not come into force. The above savings provision clearly indicates the intention of the Parliament that for the disposal of the various kinds of cases and proceedings already pending on the date when the new Code came into force, the provisions of the new Code were to have no application, as if it had not come into force at all, and all those were to be disposed of, continued, held or made in accordance with the provisions of the old Code itself. In view of the above clear stipulation and manifested intention of the Parliament, in my considered opinion, it has got to be irresistibly held that the proceeding in question was bound to be disposed of under the provisions of the old Code and for its continuance and disposal the new Code would be deemed to have not taken its birth. Once this view is taken, then it follows as a matter of corollary that all the classes of Criminal Courts constituted under Section 6 of the old Code and empowered to deal with different cases, still continue to exist for the transitional period. This conclusion is so obvious and compelling that there is no scope for any argument for taking a different view. The position might have been otherwise or might have given room for some discussion had the savings provision not made any specific provision in this regard. But once the savings provision of the repealing Code itself made specific provision in an unambiguous expression, reference to any other provision is not necessary. However, I would refer to some of the authorities that were cited by the learned counsel appearing for the petitioner to reinforce his contention,

8. Reference in this connection may be made to the case of State Of Punjab v. Mohar Singh, Son Of Pratap Singh (AIR 1955 SC 84). In this case it was observed that in a case of a simple repeal, the consequences laid down in Section 6 of the General Clauses Act will follow. But when the repeal is followed by a fresh legislation on the same subject, the Court would undoubtedly have to look to the provisions of the new Code. The line of inquiry would be, not whether the new Act expressly keeps alive the old rights and liabilities, but whether it manifests an intention to destroy them. To the same effect is the case of Indira Sohanlal v. Custodian Of Evacuee Property, Delhi & Others (AIR 1956 SC 77). It was made clear in this case that "where, as in this case, the repealing section which purports to indicate the effect of the repeal on previous matters, provides for the operation of the previous law in part and in negative terms as also for the operation of the new law in the other part and in positive terms, the said provision may well be taken to be self-contained and indicative of the intention to exclude the application of Section 6, General Clauses Act. We are, therefore, of the opinion that the said section can-Dot be called in aid in this case."

9. Reference in this connection was also made to Ram Beyas Singh v. State of Bihar (1977 Cri LJ 28: 1976 BBCJ 372) decided by a Bench of this Court. The question in this case was as to whether ah appeal against the judgment of an Assistant Sessions Judge convicting the accused and passing a sentence of seven years would lie to the Sessions Judge or the High Court. On reference to the provisions of Section 484 (2) (a) of the new Code, it was, observed in that case that the said provisions save only the pending proceedings and appeals and revisions arising out of such proceedings should be filed and disposed of in accordance with "the old Code, but inasmuch as the forum of appeal is not a vested right, it can be taken away by a subsequent legislation and therefore, an appeal must be filed in a Court in accordance with the provisions of the new Code. In para. 8 of the Judgment, it was observed by this Court that according to the non obstante clause in Section 484 (2) of the new Code, all pending proceedings, at whatever stage they might be, have to be decided under the provisions of the old Code. Reference was also made to two other cases, namely, Gobardhan Mahton v. Mt. Bari (1975 BBCJ 228) and S.M. Nazim Baboo v. The State (1975 BBCJ 359), but they being not in point, I need not discuss them.

10. Obsessed by the above inevitable conclusion, learned counsel appearing for the opposite party raised a contention that on the date of coming into force of the new Code, namely, 1-4-1974, the proceeding in question had not reached the stage of "inquiry" and, therefore, the savings provision did not govern this case, This argument is based upon the marginal note to Sub-section (4) of Section 145 of the old Code, namely, "Inquiry as to possession". We have seen that the repeal of the old Code did not affect the types of cases enumerated in Clauses (a) to (d) of Section 484 (2) of the new Code. Clause (a) mentions appeal, application, trial, inquiry or investigation. Learned counsel contended that the stage of inquiry in a proceeding under Section 145 of the old Code would reach when the Magistrate would apply his mind as to the question of possession on the filing of the written statements, production of documents and putting in of affidavits, as contemplated by Sub-section (1) of Section 145. It is only thereafter that inquiry as to possession will commence as the Magistrate has to peruse those written statements, documents, etc. to come to his conclusion. Learned counsel with reference to the expression "the Magistrate shall then ............... without reference to merits ............ peruse the statement ............" in Sub-section (4) of Section 145 of the old Code submitted that inasmuch as the written statement by the opposite party as also various documents and affidavits were not filed until the new Code had come into force, the stage of inquiry as to possession had not reached and the matter was still at the stage of the proceeding and, therefore, the saving clause would have no application as no inquiry could be deemed to be pending immediately before the coming into force of the new Code within the meaning of the saving clause.

The argument, although attractive, is misconceived and must be rejected. Sub-section (1) of Section 145 enjoins upon various classes of Magistrates mentioned therein, if satisfied either on a police report or other information, that a dispute likely to cause a breach of the peace exists concerning any land or water, etc. within the local limits of their jurisdiction, to make an order in writing requiring the parties concerned to attend Court within a time to be fixed by such Magistrates, and to (i) put in written statement of their respective claims as respects the fact of actual possession of the subject of dispute, and (ii) further requiring them to put in such documents or to adduce, by putting in affidavits, the evidence of such persons as they rely upon. Sub-section (3) then provides that a copy of the order shall be served on the person concerned and its one copy shall be published by being fixed to some conspicuous place at or near the subject of dispute. Then comes Sub-section (4) which states that "the Magistrate shall then, without reference to the merits or the claims of any such parties ......... peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the enquiry .........". The word "then"occurring in Sub-section (4) in the context is of importance. The contention is that the stage of inquiry does not begin until the documents referred to in this sub-section are filed. In my opinion, this construction cannot be accepted because if that be so, then in a proceeding where either of the parties does not choose to file any of the documents mentioned therein or comply with any of the acts enjoined upon him to be performed under the written order contemplated in Sub-section (1), then the stage of inquiry could never reach. Similarly, one party may postpone this stage to an indefinite period by taking adjournments to comply with the desired requirement. 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 stage of inquiry begins and the matter thereafter pending before a Magistrate is the matter regarding inquiry as to possession. It is not disputed that the order passed under Sub-section (1) of Section 145 was served upon the parties much earlier and it was also partly complied with before the new Code came into force.

11. It is, however, necessary to advert to some of the authorities cited by the learned counsel for the opposite party in support of his contention. He has placed reliance upon Madhu Limaye v. Ved Murti (AIR 1971 SC 2481), Nokha Singh v. Parvati Kuer (1974 BBCJ 460) and Nathan Yadav v. State of Bihar (1977 BBCJ 357). At the outset I may mention that all these cases are under Chapter VIII of the Code of Criminal Procedure relating to "security for keeping the peace and for good behaviour" spread over various sections begining from Section 106 to Section 126 of the old Code. Before adverting to the authorities, it would be useful to refer to the relevant provisions themselves in this regard.

12. Section 107 empowers a first class Magistrate to call upon a person concerned to show cause why he should not be ordered to execute a bond for keeping the peace. Under Section 112, he is to make such an order in writing, setting forth the substance of the information received, the amount of the bond to be executed and other particulars regarding sureties, etc. When all these formalities are completed, inquiry as to the truth of information upon which action has been taken starts under Section 117. The provisions, therefore, are entirely different and the manner and procedure for holding the inquiry is set out in the very scheme of the relevant provisions. The scheme of Section 145, however, is different. In this view of the matter. In Madhu Limaye's case (supra) it was held by the Supreme Court that a Magistrate can ask for an interim bond only if he cannot complete the inquiry. The inquiry, however, is in the nature of commencement of a trial according to the summons procedure and the said procedure did not empower a Magistrate to ask for an interim bond without hearing anybody and yet asking a person to furnish a bond for good conduct.

Nokha Singh's case is also in line with Madhu Limaye's case and deals with the question of the stage at which an inquiry under Section 117 of the old Code would be deemed to commence.

Nathan Yadav's case was a case under Section 107 of the new Code and the question was how to compute the period of six months within Sub-section (6) of Section 116 of the new Code, as under this provision, the inquiry has to be completed within that period from the date of its commencement, otherwise it stands terminated ipso facto, unless for special reasons to be recorded in writing by the Magistrate. On examining the scheme of Sections 111 and 112 of the new Code, it was held in this case that the inquiry contemplated by Sub-section (6) of Section 116 commences only after the person concerned files his show cause and when the Magistrate applies his mind to the same. As already observed, the analogy of the cases under that branch of the preventive chapter cannot, by analogy, apply to the scheme of Section 145 of the Code where the procedure for deciding the dispute is entirely different. I, therefore, come to the conclusion that the proceeding in question could not have been disposed of by an Executive Magistrate of the new Code, but it should have been continued and held by a first class Magistrate in accordance with the provisions of the old Code. The Parliament clearly contemplated by the savings provision that notwithstanding the repeal of the old Code, for the transitional period, all those classes of Courts 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. For these reasons, I do not find it possible to agree with the view taken by the Bench in Somari Rai's case and I feel myself constrained to observe that that case was not decided correctly.

13. Two questions still remain to be considered. The first is as to what would be the effect of its violation, i.e., whether this was a mere irregularity which was curable, or was it altogether incurable. This question can be answered at once with reference to Clause (j) of Section 530 of the old Code which enumerates the various irregularities which vitiate the proceeding altogether. It inter alia lays down that if any Magistrate, not being empowered by law in this behalf, makes an order under Chapter XII (under which Section 145 falls), then his proceedings shall be void. The Executive Magistrate (if he was not vested with Ist class powers) being not a Magistrate empowered by law under the old Code to make an order under Section 145 of the Code, the impugned order is void and has got to be set aside. In view of the clear statutory provision, it is not necessary to notice any decision in support of this proposition and it has to be held that the impugned order of the Executive Magistrate is void and must be set aside.

14. Now remains a small ancillary question to be answered as to whether the affidavits which were affirmed before the Executive Magistrate could be admissible in evidence for deciding the controversy between the parties, when the matter goes back. This question is now settled beyond controversy by the Supreme Court in Chhotan Prasad Singh v. Hari Dusadh (1977 BBCJ 46), where it was held that affidavits sworn before a Magistrate not in seisin of the proceeding were not legal evidence. In the view that I have taken, the Executive Magistrate could not legally administer oaths and affirmations to the persons who swore affidavits as it is only those Courts and persons, having by law or the consent of the parties, the authority to receive evidence, who are authorised to administer oaths and affirmations, or if they are otherwise acting in discharge of the duties or powers imposed or conferred upon them. Such affidavits which were affirmed before the Executive Magistrate who had no jurisdiction to entertain the proceeding, and thus not authorised to administer oaths could not be admissible in evidence in this case for deciding the controversy between the parties. I will, accordingly, allow the parties to get such affidavits affirmed afresh before the Sub-Divisional Magistrate, Saharsa, to whom the case is being remanded.

15. As the order of the Executive Magistrate must be set aside on the above ground alone, it is not necessary to examine the cases of the parties on merits and it will be open to the learned Sub-Divisional Magistrate to examine the materials on the record and take any view in the matter as may appear just and proper to him, without in any way being influenced by the view expressed by the learned Executive Magistrate.

16. I would, accordingly, allow this application, set aside the order in question and remand the case back to the Sub-Divisional, Magistrate, Saharsa, who was one of the various authorities by virtue of his office empowered under the old Code to initiate and pass a final order under Section 145 of the old Code and direct him to dispose of the proceeding as early as possible on the materials on record, save and except that to permit the parties to re-affirm such of the affidavits which were earlier sworn before the Executive Magistrate.

Shambhu Prasad Singh, J.

17. I agree, but would like to make a few observations of my own specially with reference to the decision in Nathan Yadav v. State of Bihar (1977 BBCJ 357). It has become necessary for that decision was given by me (another learned Judge of the Bench concurring) and strong reliance has been placed on that decision by learned counsel for the petitioner. As observed by my learned brother H. L. Agrawal, J., that decision was given with reference to Section 116 of the new Code. The language of Sub-section (1) of Section 116 of the new Code itself makes it dear that the inquiry, as envisaged under that section, will commence only after "an order under Section 111 has been read or explained under Section 112 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant, issued under Section 113." The Magistrate is required to proceed to inquire into the truth of the information upon which action has been taken and to take such further evidence as may appear necessary only after what has been quoted above takes place. The decision was given interpreting Sub-section (6) of Section 116 of the new Code as to how the period of six months is to be computed and what is the date of commencement of the inquiry for the purpose of computing that period. Obviously the date of commencement of the inquiry could not be a date before the Magistrate proceeds to inquire into the truth of information for the purposes of that section. In Sub-section (4) of Section 145 of the old Code there is a Marginal note "inquiry as to possession", but that by itself does not indicate that the inquiry could not have commenced earlier. It is significant to note that while Sub-section (1) of Section 116 of the new Code uses the words "proceed to inquire", no such words are used in Sub-section (4) of Section 145 of the old Code. Rather, the words used are "and conclude the inquiry." This difference in the use of the words in Sub-section (1) of Section 116 of the new Code and Sub-section (4) of Section 145 of the old Code itself indicates that no inquiry can be said to be pending for the purpose of Section 116 unless the Magistrate "proceeds to inquire" as contemplated by that section, but there is an inquiry pending for the purposes of Sub-section (4) of Section 145 of the old Code which is to be concluded by the Magistrate. It is now well settled that for the purposes of commencement of an inquiry taking of evidence itself may not be necessary. It commences as soon as the Magistrate applies his mind to the facts of the case before him (see the recent decision of the Full Bench in Tuneshwar Prasad Singh v. State of Bihar, Cr. W.J.C. Nos. 91 and 112 of 1977, disposed of on 20-1-1978): (AIR 1978 Pat 225).

17. In Nathan Yadav's case, I have made an observation--

"In cases where the person against whom an order under Section 111 is made is not present in court and he appears or is brought before the court in compliance with or in execution of summons or warrant issued under Section 113 of the Code, in my opinion, the inquiry cannot commence unless he files his show cause and the Magistrate applies his mind to that show cause. The mere fact that such a person appears before the court or is brought before the court does not lead to the commencement of the inquiry."

This observation creates an impression that no inquiry for the purposes of Section 116 of the new Code can commence unless a person, who is not present in court when an order under Section 111 is made, files a show cause before the Magistrate. That observation was not general in nature but made with reference to the facts of that case wherein a show cause had been filed. It does not mean that if such a person refuses to file a show cause the inquiry can never commence. Such an interpretation to that observation will lead to absurd results. However, if such a person goes on taking time for filing show cause and files it after a long delay or ultimately informs the court that he will not file a show cause, he cannot be allowed to take advantage of that fact and say that the inquiry had commenced earlier before filing of show cause by him or refusal by him to file show cause for it is well-established principle of law that either side should not be allowed to suffer on account of wrong acts of the opposite party, 18, I would also refrain from expressing any final opinion as to the interpretation of the rule laid down by the Supreme Court in Chhotan Prasad Singh v. Hari Dusadh (1977 BBCJ 46). True it is that in that case the Supreme Court has affirmed a decision of this Court that affidavits sworn before a Magistrate not in seisin of the proceeding under Section 145 of the old Code were not legal evidence, but that does not mean that the Supreme Court has also laid down in that case that High Court must interfere with orders passed by Magistrates in proceedings under Section 145 of the old Code on the basis of affidavits sworn before a Magistrate not in seisin of the proceeding even if there has been no prejudice to the parties. For instance, there may be a case where both parties may agree that such affidavits may be used and the affidavits are used with their consent. There cannot be any justification for interference by this Court in such a case. Be that as it may, I do not wish to dwell upon this aspect of the matter any further for I agree with my learned brother H. L. Agrawal, J. that it will be safer to permit the parties to get the affidavits which were earlier sworn before the Executive Magistrate re-affirmed before the Sub-Divisional Magistrate to whom this case is being remanded so that there may not be any controversy in future on the question whether such affidavits can be used in the case or not.