ORDER
H. Mahapatra, J.
1. The facts of this case are as follows. The two members of the opposite party and another person filed a petition before the Sub-divisional Magistrate of Nawadab, by which they prayed for an order directing the present petitioners not to disturb them in thrashing the crop and to allow them to take their legal share of the grains after giving due receipt for that. The police was ordered to enquire into the matter and to report on receipt of the report, on the 30th of May, 1963. Proceedings under Section 144, Code of Criminal Procedure, were started against both the parties restraining them from going over the Khalihan where the gathered crops were stored. On the 26th of July, 1962, these proceedings were converted into one under Section 145 of the Code and both the parties were asked to file papers to show the details of the land from which the crops had been harvested so that their claim could be decided once for all. The Punjis in question were attached and they were ordered to be put to sale by auction. It further appears that on the 24th of September, 1962, there was another order saying.
Start proceedings on the basis of the schedule of land given by the let party as I am satisfied that there is apprehension of breach of peace between both the parties, Let the parties file W. S., affidavits and other things in support of their claim of possession.
Thereafter, written statement and affidavits were filed and on the 26th of September, 1963, final orders were passed by the Magistrate holding that the first party, viz., the opposite parties here, were in possession of the lands in question. Against that, the Sessions Judge was approached by the present petitioners without any success and the present application was filed in this Court on the 28th of July, 1964.
2. It appears, the basis of the impugned order was the proceeding that was started afresh on the 24th of September 1962, though the Magistrate observed that day in his order sheet that he was satisfied that there was apprehension of breach of the cease between the parties, be did not mention as to from which source he had information to give him satisfaction of the apprehension of breach of the peace. A Magistrate can only act under Section 145, Code of Criminal Procedure, provided he is satisfied from the police report or other information that a dispute likely to cause breach of the peace exists concerning any land or water In the present case neither the older passed on the 31th of September, 1962. nor anything on record disclosed the source of any such information to the Magistrate. Mere filing of a schedule of lands by one party does not give to the Magistrate jurisdiction to start proceedings under Section 145 of the Code. Learned Counsel appearing for the opposite party contended that the present proceedings were a continuation of the previous proceedings which had been initiated on the 26th of July, 1962. If it were so, then the Magistrate would not have ordered to start proceedings afresh on the 24th of September, 1962, In my view, the entire proceedings have been vitiated by lack of jurisdiction which was assumed wrongly by the Magistrate on the 24th of September, 1962, without having any material before him that there was any apprehension of breach of the peace, arising out of a dispute in regard to any immovable property.
3. There are other infirmities about the impugned order also. Three affidavits had been filed by the second party, from persons who are inhabitants of the village Pakribarawan, disclosing that the agricultural implements and animal husbandry of the petitioners had been removed from the village Pind Parwa, as their houses fell down, to the village Pakribarawan from where the agricultural operations were being carried on by them on the disputed land. The learned Magistrate has discarded this part of their cause on an erroneous impression that no affidavit had been filed from any of the villagers of Pakribara-wan to establish that there had been such removal of the implements and animal husbandry by the second party to that village. I have found that affidavits from Bajo Mushar, Ganesh Manjhi and Mohan Musahar of village Pakribarawan were filed by them. The learned Additional Sessions Judge also fell into the wrong impression about the absence of any affidavit from any villager of Pakribarawan.
4. Another thing noticeable in this case is that the Magistrate took into consideration the two police reports and a report by the Anchai Adhikari, although such reports were not sworn to or the makers of those reports were not examined before the Court. Section 145, Criminal P. C., authorises the Magistrate to require the parties to put in such documents or to adduce, by putting in affidavits, the evidence of such persons as they rely upon in support of their respective claims. The documents, viz., the reports by the police officer or the Anchal Adhikari, were not produced by any of the parties. The scheme is to enable the Magistrate to decide the question of possession on sworn affidavits or on evidence of persons who may be examined as provided under sub Clause (9) of Section 145. Documents are also permissible to be put in by the parties in support of their claim. This, however, does not bring in enquiry reports by some police officers or other officers.
5. For all these reasons, the impugned order cannot be sustained.
6. Learned Counsel appearing for the opposite) party, however, raised an interesting point about limitation. Archie 131 of the Limitation Act, 1963, provides a period of 90 days for making art application to any Court for the exercise of the power of revision under the Code of Criminal Procedure, 1898, and this period is to be computed from the date of the order sought to be revised. Learned Counsel urged that in the present case final orders under Section 145, Criminal P.C., were made on the 26th of September, 1963 and the present petitioners are challenging that order and. therefore, the period of limitation available to them was only 90 days since the date of that order. The present application wag filed much thereafter. Section 80 of the Act. in Clause (b), provides that an application for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be preferred or made within a period of 90 days next after the commencement of this Act (the new Limitation Act) or within the period prescribed for such application by the Indian Limitation Act, 1908, whichever period expires earlier. No period of limitation was prescribed for revision application under 8s. 435 and 439, Criminal P. C., in the earlier Indian Limitation Act. If it is taken that unlimited period was prescribed there in the sense that no period of limitation was provided, and the period of limitation now prescribed under the present Act is shorter than that unlimited period, then under Clause (b) of Section 30 a revision application could only be filed within 90 days after the commencement of the new Act which came into force on the 1st of January, 1964. Computed on that basis, the present application filed on the 28th of July, 1964, would be beyond the period of limitation. There is no provision in the new Act to exclude the period occupied in the Court of the Sessions Judge by an application filed by the aggrieved party against the impugned order under Section 145, Criminal P. C., a practice which is usually followed and a practice which has been encouraged by this Court. In the present case, the application for reference to the High Court was made by the petitioners before the Sessions Judge before the new Limitation Act commenced its operation, following the old practice. If the present application is taken to be one against the order passed by the learned Additional Sessions Judge on the 30th of April, 1961, in the sense that he should have referred the matter to the High Court when there were blemishes and illegalities in the impugned order of the Magistrate, the present application can be said to be within time as it was filed on the 28th of July, 1964, within 90 days of the date of the order passed by the Additional Sessions Judge. Sections 435 and 439, Criminal P. C., authorise this Court, without an application from any party, to exercise its jurisdiction in order to satisfy itself as to the correctness, legality or propriety of any order passed by any inferior Criminal Court. After having found that the impugned order of the Magistrate was neither legal nor correct, it will be travesty of justice if I would decline to interfere in this case for the simple reason that the petitioners’ application to this Court against the impugned order of the Magistrate was barred by time under the provisions of the new Limitation Act. The other course which could be followed is to set aside the order of the Additional Sessions Judge, dated the 30th April, 1964, and direct him to refer the case to this Court; but that would only be a mere technical duplication which, in my view, is not called for. I would prefer to act under Sections 435 and 439, Criminal P. C.
7. For all the reasons given above, the order of the Magistrate, dated the 26th of September, 1963, is set aside.