ORDER
C.P. Sinha, J.
1. This application under Section 561A of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code) is on behalf of the accused persons, eighteen in number. It has been filed with the prayer to quash the cognizance in the case as taken by the Sub-divisional Magistrate, Nawadah in his order dated 6-9-1973 and the subsequent proceedings thereto as taken in the transferee court where the case is still pending. The first three opposite party are the above Sub-divisional Magistrate and the transferee Magistrates and opposite party No. 4 is the complainant of this case.
2. On 24-11-1972 the complainant filed a complaint in the court of the Sub-divisional Magistrate, Gaya making allegations against these petitioners that on 23-11-1972 at about 8 A.M. they had forcibly cut away the paddy crops that he had grown on his 0.75 acre of plot No. 110 and had removed them putting him to a loss of about Rs. 500. On receiving this complaint the Sub-divisional Magistrate examined the complainant on oath on that very day, i.e. 24-11-1972 and referred the matter for judicial enquiry. Subsequently on the complainant’s petition the enquiry was recalled from that Magistrate and entrusted to another officer. It was also recalled from him as he failed to complete the enquiry in time and was entrusted to another Magistrate, Mr. T. K. Dass. In course of his enquiry, he examined five witnesses and after examining the evidence and the circumstances placed before him, he submitted his report to the Sub-divisional Magistrate, Nawadah, to whose file the case had come from Gaya upon creation of the new Nawadah district in respect of areas covered out from the Gaya district. The Sub-divisional Magistrate, Nawadah, after having perused that enquiry report, felt satisfied that prima facie case under Section 379, Indian Penal Code had been established against all the 18 accused persons. Accordingly, he took cognizance in the case under that section and transferred it to another Magistrate for disposal. In the transferee court the case is said to be still pending at that stage in view of the stay order of this Court in the instant application.
3. Mr. C. P. Sinha learned Counsel for the petitioners, has assailed the cognisance and the proceeding in the case on the ground that at the time this incident is said to have taken place, a proceeding under Section 144 of the Code was already pending in respect of this land was initiated earlier. In that situation, it was not open to the Sub-divisional Magistrate to have taken cognizance of any complaint under Section 379, Indian Penal Code, against these accused persons, and if any action was called for on any such complaint that should have been under Section 188, Indian Penal Code, For this view, he has strongly relied on the decision of M. P. Verma, J. in Mahendra Prasad Singh v. State of Bihar . His submission is that the cognizance so taken in the case, must, therefore be quashed and the Sub-divisional Magistrate should be directed to initiate action under Section 188, Indian Penal Code if he finds materials to act on that line.
4. The facts which gave rise to the above case were these. The complainant filed a petition of complaint before the Sarpanch of the Gram Cutchery on 14-9-1966 alleging that the accused had forcibly cut away and removed crops from the land concerned. The Sarpanch got the matter enquired into by the Mukhia of the Gram Panchayat. After receipt of the report, the Sarpanch sent the petition of complaint to the Sub-divisional Magistrate, Gaya who then took cognizarce under Sections 147 and 379 of the Indian Penal Code and transferred the case to another Magistrate, for trial. As against that cognizance order the accused moved this High Court with the allegation that the lands in question were the subject-matter of a proceeding under Section 144 of the Code and both the parties had been restrained from going upon the land and that the alleged cutting of crops had taken place within a period of 60 days from the date of issue of the prohibitory order under Section 144. When the High Court heard that matter, it made two observations, relevant of which was that in a case of that nature where there had been violation of prohibitory order, the Sub-divisional Magistrate should not have taken cognizance himself but should have made a complaint against the alleged wrong-doers under Section 188, Indian Penal Code.
The argument as advanced by the petitioners before Verma J. was that at the time of the harvesting of the crops the complainant could not be said to be in possession of the property as he as well as the accused persons had been restrained from going upon the land by that probatory order made under Section 144. This argument weighed with the learned Judge and he held that the complainant could not be said to be in possession of the land in view of the prohibitory order and, therefore, the charge of theft was not maintainable, and, as such, the cognizance taken by the Magistrate in the case was bad. He further observed that there was not much distinction in the language of the provisions under Sections 144 and 145 of the Code in the matter of prohibitory order and when a particular party was restrained from enjoying possession of the land, he must be taken to be out of possession for that period. For this view, he relied upon the single Judge decision of the Calcutta High Court in Osman Mistry v. Atul Krishna Ghosh AIR 1949 Cal 632 : 51 Cri LJ 97.
5. It, however, appears that the above Calcutta view was subsequently overruled by its own Full Bench in Dhirendra Nath Bera v. Nurul Huda which decision was later upheld by the Supreme Court in the appeal to the Supreme Court against that Full Bench decision, Basir-ul-Haque v. State of West Bengal . Evidently, therefore that law of the Calcutta High Court in AIR 1949 Cal 632 : 51 Cri LJ 97 did not stand at the time M. P. Verma, J. relied upon it.
6. The view expressed by Sahai J, in the earlier case of Gokul Singh v. Jagdish Singh 1963 B.L.J.R. 211 in similar circumstances was quite different to the above view taken in . In that case Sahai J. had clearly laid down that there is a difference between an order under Section 144 and an order of attachment under Section 145 (4) of the Code, and under the former a Magistrate merely directs a person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management; he does not by that order disturb the possession of the party who is in possession nor does he put a property which may be in dispute in possession of the court; an order of attachment, on the other hand, has the effect of putting the property in the custody and possession of the court; a party who may have been in possession before the order of attachment is deprived of possession; when there is an order under Section 144 prohibiting parties from going upon the disputed land and a person dishonestly cuts and removes crops from that land, he dishonestly takes the crops out of the possession of the party who may be held to have been in possession and to have grown the crops before the order under Section 144 was passed; when an order of attachment under Section 145 (4) is in force, the person who dishonestly removes the crops from the land in question, takes it out of the possession of the court; apart from other offences which may, in different circumstances, be held to have been committed, the party removing the crops may certainly be convicted of theft.
7. It is evident that at the time Verma J. was hearing the aforesaid case his attention was never drawn to this decision of Sahai J. On the other hand, as it appears, the party concerned referred to the said Calcutta Single Judge decision without telling the court that it had already been overruled by the Full Bench of that court.
8. In my considered opinion, the law as enunciated in the aforesaid decision of Sahai J. is to be treated as the correct law on this point and it should govern the instant case also. The mere fact that prior to the filing of this complaint dated 24-11-1972 a prohibitory order had been made in respect of this land on 25-10-1972 (vide paragraph 2 of this application) could not, I think, take away the Magistrate’s jurisdiction to take cognizance in the case under Section 379, Indian Penal Code, if he felt satisfied on the complaint and other relevant materials placed before him that such a prima facie case had been made out. It may be somewhat relevant to mention in this connection that according to the petitioners themselves, that 144 proceeding was between the present petitioner No. 2 and this complainant (opposite party No. 4). This means that out of these 18 accused, only one of them, i.e. petitioner No. 2, was a party in that proceeding.
9. In the light of the above discussion, I am clearly of the view that no infirmity can be found with the cognizance taken by the Magistrate when he felt satisfied on the materials brought before him about the making of such a prima facie case. Consequently, the subsequent proceedings in the case would also appear to be in order, and no fault can be found with it on that score.
10. The other contention of the petitioners is that when the complaint was filed in the court of the Sub-divisional Magistrate, Gaya, it was not open to the Sub-divisional Magistrate, Nawadah to take cognizance in the case and if there was any case for such cognizance, it was only the Sub-divisional Magistrate, Gaya, who could do so. This argument in the circumstances would appear to be somewhat misconceived. It has been pointed out by the opposite party, and not controverted by the other side, that this complaint though filed initially at Gaya was later transferred to the court of the Sub-divisional Magistrate, Nawadah, consequent upon the creation of the new district of Nawadah. It is not in dispute that the new Nawadah district was created in respect of parts of the areas of Gaya district, and the area to which this case related had come to Nawadah in that redistribution of the areas, This obviously brought this case within the territorial jurisdiction of the Nawadah Sub-divisional Magistrate, who could thereafter be well taken to be the successor-in-office of the Gaya Sub-divisional Magistrate in respect of this case. That being so, the Sub-divisional Magistrate, Nawadah must be deemed to possess requisite power and jurisdiction to deal with it thereafter. That there was such a transfer of this case from the court of Sub-divisional Magistrate, Gaya, to the court of Sub-divisional Magistrate, Nawadah, where it was dealt with in the usual course till this cognizance will be apparent from the order sheet from 14-3-1972 and onwards.
11. For the reasons stated above, I am unable to find any substance in this application and it must fail. It is, accordingly, dismissed.