C.N.TIWARY, J.

1. This is an application in revision against the final order, dated 26-8-74 passed in a proceeding under Sec.145 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code) by Sri K. K. Sharma, an Executive Magistrate posted at Muzaffarpur.

2. Initially a proceeding under Sec.144 of the Code was drawn up on 7-11-71. It was converted into a proceeding under Sec.145 of the Code on 2-2-72. The dispute related to survey plot No. 543 having an area of 6 acres 96 decimals of land situate in village Aurai in the district of Muzaffarpur. Both the parties filed written statements, documents and affidavits of witnesses. The learned Executive Magistrate Sri K. K. Sharma on consideration of the written statements, documents and affidavits filed by the parties declared the second party to be in possession of the disputed land by his order dated 26-8-74. The petitioners, who were first party to the proceeding under Sec.145 of the Code have filed this application in revision against the order, dated 26-8-74.

3. This case was, in the first instance, heard by a learned single Judge, who referred it to a Division Bench. It is how this has been placed before us.

4. It is submitted on behalf of the petitioners that the inquiry under Sec.145 was pending immediately before the date, on which the Code of Criminal Procedure, 1973 (hereinafter referred to as the new Code) came into force and therefore, in view of the provisions contained in Sec. 484 (2) (a) of the new Code the inquiry should have been made in accordance with the provisions contained in the old Code by a Magistrate of the first class and not by an Executive Magistrate. In the old Code power to initiate and dispose of proceeding under Sec.145 was conferred on District Magistrate, sub-divisional Magistrate or Magistrate of the first class. Shri. K. K. Sharma is neither District Magistrate nor sub-divisional Magistrate nor a Magistrate of the first class. It is, therefore, contended that Shri K. K. Sharma, who is an Executive Magistrate had no jurisdiction to pass final order dated 26-8-74 in the proceeding under Sec.145 of the old Code and hence, the final order passed by Sri Sharma is without jurisdiction and is liable to be set aside. According to the learned counsel for the petitioners the proceeding under Sec.145 of the old Code should have been disposed of by a judicial Magistrate of the first class.

5. The learned counsel appearing on behalf of the opposite party, on the other hand, has argued that such a proceeding pending on the date immediately before the date on which the new Code came into force is to be disposed of by an Executive Magistrate.

6. We have heard the learned counsel for the petitioners and the opposite party. Mr. Kailash Roy, a senior Advocate, was also good enough to assist us. The argument of Mr. Roy also is to the effect that a proceeding under Sec.145, which was pending immediately before the date on which the new Code came into force, has to be decided by a judicial Magistrate of the first class.

7. Thus, the only point for consideration is whether a proceeding under Sec.145 of the Code which was pending immediately before the date on which the new Code came into force is to be disposed of by an Executive Magistrate or a judicial Magistrate of the first class.

8. The new Code confers powers on the Executive Magistrate alone to initiate and dispose of proceeding under Sec.145. Therefore, under the new Code it is the Executive Magistrate alone, who has jurisdiction to initiate and dispose of proceeding under Sec.145. As stated above, under the old Code the power to initiate and dispose of a proceeding under Sec.145 was conferred on District Magistrate, sub divisional Magistrate and Magistrate of the first class. There is no provision either in the new Code or in the old Code for initiation or disposal of the proceeding under Sec.145 of the old Code by a judicial Magistrate of the first class. The Court of the judicial