The period of limitation for an application in revision to the High Court for setting aside an order of a Magistrate passed in a proceeding under Section 145 of the Code of Criminal Procedure is to be counted from the date of the order of the Magistrate, and not from the date of the order of the Court of Session refusing to make a reference to the High Court.

1. This application in revision is directed against an order of a magistrate dated the 9th June, 1065 by which he declared in a proceeding under Sec.145 of the Code of Criminal Procedure, the second party to be in possession of the disputed land and directed the first party not to go over that land. The petitioners in this court constituted the members of the first party and the opposite party constituted the members of the second party in the proceeding under Sec.145 of the Code. This application in revision was placed before Mr. Justice Anant Singh who while admitting the application was pleased to observe that, in view of the decision of Mahapatra J. in Abdul Sayeed Khan V/s. Jagarnath Nonia, 1965 BLJR 427 this application be heard by a Division Bench. Accordingly the case has been placed before us.

2. The practice of this court has always been that a person aggrieved by the final order of a Magistrate in a proceeding under Sec.145, Code of Criminal Procedure has to go to the court of session in the first instance and request that court to make a reference to this court, if it is satisfied that the impugned order requires interference by this court, and when the Court of Session refuses to make a reference, the aggrieved party comes to this court, under Sec.139 read with sec. 435 of the Code. In the instant case, however, the petitioners have come directly to this court without going to the court of Session; and the question involved in view of the decision of Mahapatra J. is whether the present applied (SIC) direct to this court should be entertained.

3. This question has arisen on account of a specific provision in the new Limitation Act of 1963 prescribing a period of limitation for an application in revision. This is prescribed by Article 131 of the new Limitation Act, which lays down that the period of limitation for an application to any court for the exercise of its powers of revision under the Code of Civil Procedure, 190S or the Code of Criminal Procedure, 1898, shall be ninety days from "the date of the decree or order or sentence sought to be revised." In the instant case the petitioners have requested this court to review the order of the learned Magistrate dated the 9th June, 1965.

4. Mr. S.K. Ghosal, who appeared for the petitioners, submitted that his clients could not take the risk of making an application to the court of Session for making a reference to this court, as ordinarily such applications are not disposed of by the court of Session within ninety days of the date of the order of the Magistrate and, therefore, if his clients waited for the order of the court of Session and that court refused to make a reference to this court, then the application to this court under sec. 439 read with Sec. 435 of the Code of Criminal Procedure would be time barred in view of the specific provisions contained in Article 131 of the new Limitation Act. That is the view which was taken by Mahapatra J. in the aforesaid case of Abdul Sayeed Khan, 1965 BLJR 427.

5. Mr. S.B. Sanyal, who appeared for the opposite party, has however submitted that this court should not depart from its well-established practice and should not encourage a party to come to it directly. According to him, the difficultly pointed out by Mr. Ghosal does not really arise, because the period of Limitation is to be counted from the date of the order of the court of Session refusing to make a reference to this Court. But it will be noticed that the period of limitation prescribed by Article 131 of the new Limitation Act is to run from the date of the order sought to be revised; and it is manifest that in cases like the present one the order sought to be revised is the order of the Magistrate passed in the proceeding under Sec.145 of the Code of Criminal Procedure. It is difficult to appreciate Mr. Sanyals argument that the order sought to be revised would be the order of the Court of Session refusing to make a reference to this court. Even, assum