Judgment

KAILASAM, J. :- This appeal is by special leave by the second party in S. 145 of the Criminal Procedure Code proceedings against the judgment of the Patna High Court in Criminal Revision No. 765 of 1976.

2. On receipt of a Police Report dated 29-2-1968, proceedings under S. 144 of the Criminal Procedure Code were started on 18-3-1968. The appellants in this Court are the Second Party and the respondents the First Party. The proceedings were converted into one under S. 145, Criminal Procedure Code and the lands in dispute were attached on 14-5-1968. Both the parties claimed title as well as possession of the disputed land with them. The First Party, respondents, filed their documents and nine affidavits in support of their claim while the appellants, Second Party, filed several documents and 12 affidavits in support of their case. The Magistrate on a consideration of the material placed before him found himself unable to decide as to which of the parties had been in possession of the disputed land, and referred the matter to the civil court for a finding on the issue. On a consideration of the materials placed before him the Munsif by an order dated 22-12-1975 found that the appellants, Second Party, were in possession and sent back the records to the Magistrate for disposal according to law. The Magistrate passed an order dated 7-4-1976 in accordance with the finding on the issue as to possession by the Munsif, holding that the appellants, Second Party, was in possession.

3. Aggrieved by the order of the Magistrate, the First Party filed a Revision Petition to the High Court. The High Court found that the Munsif had failed to consider the affidavits of either party but decided the question of possession only on the documents. As the Munsif failed to consider the affidavits, the High Court was of the view that the finding as to possession on the basis of documents alone without applying its mind to the affidavits, cannot be sustained. The appellants, Second Party, being aggrieved by the order has come up to this Court by special leave.

4. The questions that arise for consideration in this appeal are (1) whether the finding of Civil Court under S. 146 (1B) can be challenged by way of an appeal or by review or revision, (2) whether an order which is passed by the Magistrate on the receipt of the finding of the Civil Court, in conformity with the decision of the Civil Court, can be challenged before the High Court under Ss. 435 and 439 of the Criminal Procedure Code, and (3) whether an order passed by the Magistrate under S. 146 (1B) can be interfered with by the High Court in exercise of its powers under Art. 227 of the Constitution of India.

5. There is conflict of views between various High Courts regarding the points raised. We would content ourselves by referring to three Full Bench decisions wherein the decisions of all the High Courts are referred to. The two Full Bench decisions of the Patna High Court are reported in AIR 1963 Pat 243 (Raja Singh v. Mahendra Singh), Dewani Choudhary v. Chaturi Manjh (1971 BLJR 116). The Full Bench decision of the Allahabad High Court is reported in AIR 1971 All 12 (Farzand Ali v. Shaukat Ali).

6. In Raja Singh v. Mahendra Singh (supra), the Full Bench of the Patna High Court by a majority of 2 to 1 held that in exercise of its revisional powers under Ss. 435 and 439 of the Code of Criminal Procedure the High Court can, in suitable cases, interfere with the decision of the Civil Court given by it under sub-sec. (1-A) upon a reference made to it under sub-sec. (1) of S. 146 of the Code after the referring Magistrate has disposed of the proceeding under S. 145 under sub-sec. (1-B), and that the bar as to appeal, review and revision imposed by sub-sec. (1-D) operates only so long as the Magistrate has not passed his order under sub-sec. (1-B) of S. 146. The minority view on the other hand, is that the bar of sub-sec. (1-D) continues even after the Magistrate has disposed of the proceeding u