ORDER
B.D. Singh, J.
1. This revision was filed by Hajari Shafi and 112 others. They were first party in the court below under Section 145 of Criminal Procedure Code. It has been filed against the order dated 13th of September, 1967 of the Sub-divisional Officer, Sitamarhi, directing Sri Jaideo Das, Magistrate, 1st class, to sign, date and deliver the judgment already written by Sri Balram Singh, the predecessor in office who heard the case because he was transferred to some other place.
2. Before I take up the consideration of this revision it will be necessary to dispose of the application of the petitioners dated 7-3-1968 in which they have prayed for condonation of delay in filing the revision before this Court. According to provisions under Article 131 of the Limitation Act, 1963, the period for filing revision against the order is 90 days whereas in the instant case the petitioners have filed the petition much beyond the period of limitation prescribed. In the past, the practice was that in such cases reference petition used to be filed before Sessions Judge and that used to take long time. Therefore, now it has been decided by a Bench of this Court that instead of going to Sessions Judge, in order to save time revision should be filed direct to this Court. In spite of that the petitioners in this case filed the application before Sessions Judge for reference against the impugned order. In the ground for condonation of the delay they have alleged that due to wrong advice given by the lawyers they filed the application before the Sessions Judge, Muzaf-farpur. There are some decisions of this Court which do not favour condonation of delay in such cases, as sufficient opportunities now have been given to the members of the public to know about limitation prescribed by the said Act. But in this case since a substantial question of law is involved I feel inclined to condone the delay and to hear the application on merits and I order accordingly.
3. It appears that in 1963 a proceeding under Section 144 of the Code of Criminal Procedure (hereinafter referred to as the Code) was drawn up by the Sub-Divisional Officer against both the parties due to apprehension of breach of the peace in respect of about 300 bighas of land in village Birpur of police station Sursand in the district of Muzaffarpur.
4. On 12-12-1963 the said proceeding was converted into one under Section 145 of the Code. On 13-9-1966, the conduct of the proceeding was ended and 13th of October, 1966 was fixed for final order.
5. Sri Baliram Singh, who was the trying Magistrate, gave various adjournments and ultimately fixed 20-4-1967 for
delivering the judgment in the said proceeding. A day earlier that is on 19-4-1967, the petitioners filed an application before the Sub-Divisional Officer under Section 528. Clause (2) of the Code to recall the case from the court of SrJ Baliram Singh and to hear the case on merit and to deliver the judgment.
6. On the same day i. e. on 19-4-1967 Sri R. N. Tewary, 3rd Officer who was acting as Sub-Divisional Officer in the absence of the Sub-Divisional Officer recalled the case and ordered the application under Section 528 of the Code to be put up before Sub-Divisional Officer for final order.
7. On 20-4-1967, the petitioners again filed a petition before Sri Baliram Singh that he should not sign the judgment as the record has already been called from his file. Sri Baliram Singh, however, made a note in the order-sheet that the judgment of 42 pages has already been written by him but he will not deliver the same as the record has been called from his file. Subsequently Shri Baliram Singh was transferred.
8. On 13-9-1967, the petitioner’s application under Section 528 of the Code was heard by the Sub-Divisional Officer and he directed Shri Jaideo Das, who succeeded to the office of Sri Baliram Singh, to date, sign and deliver the judgment which was written by Sri Baliram Singh, the then trying Magistrate. Against this order this revision has been filed.
9. Mrs. Lall, learned counsel appearing on behalf of the petitioners, has contended that under Section 350 of the Code the succeeding Magistrate cannot date, sign and deliver the judgment which was written by Sri Baliram Singh, the trying Magistrate. Section 350 of the Code reads as follows :–
“(1) Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly
recorded by himself.
*****
She has contended that after the amend-ment under Section 350 it is true that a Magistrate may act upon the evidence already recorded by his predecessor, but that is also, his option. If he so likes he may order a de novo enquiry, and he may take fresh evidence. But it does not empower him to sign the judgment written by his predecessor and to deliver the same. Even if he chooses to rely on the evidence recorded by his predecessor, he will have to write his own judgment, and,
then he will have to sign and deliver it In accordance with law. She has further contended that the proceeding under Section 145 of the Code amounts to ‘inquiry’ as defined under Section 4(1) (k) of the Code. She has drawn my attention also to Section 145 (4) of the Code the relevant portion of which reads as follows :–
“The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject :
Provided that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in
as to the facts contained therein.
*****”
According to her, this provision clearly directs the Magistrate to peruse the statements, documents and affidavits, if any, hear the parties and then conclude the enquiry. Even, according to this provision the Magistrate has to hear the parties afresh. Therefore, she has submitted that the impugned order passed by the S. D. O. directing the succeeding Magistrate Shri Jaideo Das, to sign, date and deliver the judgment written out by his predecessor is contrary to the provisions of law. In order to fortify her contention, she has relied on a decision of this Court in Jagar-nath Singh v. Francis Kharia, AIR 1948 Pat 414. That case also related to a proceeding under Sec. 145 of the Code. In that case also Section 350 of the Code came up for consideration. Meredith, J. (as he then was) observed in paragraph 3 :–
“…..The matter is then postponed for one reason or another, and the judgment is not finally delivered until June –nearly six months after the conclusion of the hearing — and finally the judgment is written by a Magistrate who has heard no arguments in the case. A Magistrate may no doubt act in suitable cases on evidence recorded by his predecessor, but I fail to understand how he can act upon arguments made before his predecessor which he has never heard…..”
10. On the other hand, Mr. Brajesh-war Prasad Sinha, appearing on behalf of the opposite party, has contended that the impugned order is valid and legal. He has urged that an order under Section 145 of the Code is not a judgment and, therefore, the provisions contained under Section 367 of the Code are not ap-
plicable. He has further urged that Shri B. Sinha, who had written out the judgment in the said proceeding has clearly written in the order-sheet as follows :–
“Adesh Aj taiyar hai aur abhilekh ke sath 42 prista me adesh sanlangna hai. Chunki 528 ka adesh patra par abhilekh nianga gaya hai atah anumandal padadhi-kari ke pas abhilekh bhej de. Mai adesh nahin sunaunga.”
Therefore, he has submitted that the judgment was ready on that date and although he did not sign the judgment it will amount to his judgment, and the succeeding Magistrate can sign the same and deliver it. No prejudice will be caused to the petitioners.
11. In my opinion, in view of the above decision of this Court reported in AIR 1948 Pat 414 (supra), his contention cannot be accepted. In my view, the contentions of learned counsel appearing on behalf of the petitioners, are well founded. The order of the S. D. O. cannot be sustained.
12. In the result, I set aside the order and allow this application. I further direct that the proceeding should be disposed of either by the permanent S. D. O. or by Shri Jaideo Das, Magistrate, as soon as possible, in accordance with law.