ORDER
R.P. Sinha, J.
1. This is an application in revision by the petitioner who was the first party in the court below against the final order dated 30-4-1975 passed in a proceeding under Section 147 of the Code of Criminal Procedure, 1898, by the Executive Magistrate, Gopalganj, dropping the proceeding pending enquiry before him.
2. Learned Counsel for the petitioner has submitted that the impugned order of the learned Magistrate cannot be sustained in view of the fact that the same should have been passed by a Magistrate of the first class and the learned Magistrate being Executive Magistrate and not a Magistrate of the first class had no jurisdiction to pass the impugned order in the proceeding which was pending in the court below before the new Criminal Procedure Code came into operation. Reliance has been placed upon Section 484 (2) (a) of the Code of Criminal Procedure, 1973, which reads thus:
(2) Notwithstanding such repeal,-
(a) if, immediately before the date on which this Code comes into force, there is any appeal, application, trial, 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 (5 of 1898) as in force immediately before such commencement (hereinafter referred to as the old Code), as if this Code had not come into force:
…
It has been submitted that this enquiry under Section 147 of the Code of Criminal Procedure, 1898, was pending since long before the new Code came into force and so it should have been disposed of in accordance with the old Code, Under Section 147 of the Code of Criminal Procedure, 1898, District Magistrate, Sub-divisional Magistrate or Magistrate of the first class were only competent to dispose of the proceeding under that section and so it has been submitted that the learned Magistrate being an Executive Magistrate and not a Magistrate of the description in Section 147 of the old Code was not competent to pass this order. But one thing has to be kept in view that now under the provisions of Section 147 of the Code of Criminal Procedure, 1973, it is the Executive Magistrate who can dispose of an enquiry under that section. So naturally the Executive [Magistrate is to be treated as the successor-in-office of the Magistrate of the description given in Section 147 of the old Code In the case of Mahanth Harihar Das v. State 1975 BBCJ 364 a Division Bench of this Court has held that by fiction of law now a Magistrate has to be read to mean a Judicial Magistrate and the power to issue processes under Section 204 has to be exercised by Judicial Magistrate. That was a decision in a different context, but in the present case on the basis of that decision it can safely be said that the functions which were being discharged by the Magistrates of the description given in Section 147 of the Code of Criminal Procedure, 1898 are now to be discharged under the new Code by an Executive Magistrate and so the Executive Magistrate is now successor-in-office of the Magistrate of first class as now there is only one class of Magistrates on the executive side who are called Executive Magistrates and they are vested with the powers to conduct enquiry under Section 147 of the new Code. In my opinion therefore, it cannot be said that the learned Magistrate who has been Executive Magistrate was not competent to pass the impugned order as, in my opinion, he is now the successor-in-office of the Magistrate of first class under the old Code in matter of proceeding under Section 147 under the new Code.
3. The other point urged on behalf of the petitioner was that the learned Magistrate has relied on the decision of a case . But that was a case in which there had been a final adjudication by a civil court whereas in the present case the matter is not yet adjudicated but only pending and so the proceeding under Section 147 of the Code on that account should not have been dropped. In my opinion, only because a suit is pending in the civil court, the Magistrate should not have dropped the proceeding unless he was satisfied that there was no apprehension of breach of the peace after filing of the civil suit. The provisions of Sections 144, 145 and 147 are meant to prevent the contesting parties from committing breach of the peace if there be an apprehension of any breach of peace at their instance. In my opinion, therefore, the learned Magistrate before dropping the proceeding should have taken into account not only the fact that a title suit has been filed but also the fact regarding the existence of apprehension of breach of the peace as a result of filing of the title suit and if he was satisfied that there was no apprehension of breach of peace, then certainly he should not have proceeded with the proceeding under Section 147 of the Code, However, if in spite of the title suit there was likelihood of breach of the peace between the parties, in that case the proceeding should not have been dropped.
4. For the reasons stated above, the application is allowed, the impugned order of the learned Magistrate is set aside and the case is sent back to him for ascertaining as to whether there is still apprehension of breach of the peace between the parties and thereafter to proceed in accordance with law.