HARI LAL AGRAWAL, J.

1. This application in revision is by the member of the second party against the final order dated 22nd September, 1976, passed by Shri N. Jha, Executive Magistrate, Saharsa, in a proceeding initiated on 26th May, 1973, under the provisions of Sec.145 of the Code of Criminal Procedure, 1898 (hereinafter to be referred to as the old Code). During the pendency of the proceeding, the old Code was repealed by the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the new Code) and the proceeding was decided by the aforesaid Shri N. Jha, an Executive Magistrate, who is a creature of the new Code and a competent authority to initiate and dispose of such a proceeding under the came.

2. The question that has been canvassed for our consideration is as to whether an Executive Magistrate was the proper authority who could pass the final order in such proceedings which were initiated during the enforcement of the old Code and were pending on the date of coming into force of the new Code. In other words, the argument is that notwithstanding the coming into force of the new Code. the pending proceeding should be concluded by the same class of Criminal Court which was empowered under the provisions of the old Code to initiate and decide such a proceeding.

3. A Bench of this Court in the case of Somari Rai V/s. Raghunandan Pd. Sharma (1977 BBCJ 26) has taken the view that proceedings under Sec.145 pending immediately before the commencement of the new Code came into force can be disposed of by an Executive Magistrate as provided under Sec. 145 of the new Code. The correctness of this decision was doubted by various learned Judges of this Court and they referred the matter to larger Bench. A batch of such cases came before a Bench consisting of Shambhu Prasad Singh, J. and myself and in view of the importance of the question and to resolve the same, we by our order dated 26th November, 1977, directed for placing this case before Hon ble the Chief Justice for constituting a larger Bench and decided and disposed of the other cases of the batch on different points. In this view of the matter and for the view that I propose to take in this case, it would not be necessary to enter into the controversial question of facts with respect to the merits of the claims of the respective parties. I may, however, state very briefly the facts leading to the initiation of the proceeding.

4. The area in dispute in this case is a little over 10 bighas 5 kathas situate. in villages Bela and Panchagachia, in the district of Saharsa. On the basis of a police report dated 20th February, 1973, the Sub-Divisional Magistrate, Saharsa, initiated a proceeding under Sec. 144 if the old Code by his order dated 30th March, 1973. Both the parties appeared and filed their show cause. After hearing the parties, the Sub-Divisional Magistrate converted the aforesaid proceeding into one under Sec.145 of the old Code by his order dated 26th March, 1973. A copy of the proceeding was also served on both the parties. By his order dated 27th June, 1973, the learned Sub-Divisional Magistrate had also directed the parties to put in their written statements and to file their relevant documents and evidence in support of their respective claims. The second party (petitioner) filed his written statement on 19th February, 1974, whereas the first party (opposite party) filed their written statement on 15th June, 1974, after coming into force of the new Code. The proceeding was transferred to the Executive Magistrate on 18th July, 1974, after the new Code came into force, who ultimately passed the final order under challenge. It may also be mentioned that in June 1973, both the parties had filed petitions that the disputed lands be settled by auction, but the learned Magistrate instead had appointed a receiver. No other fact is necessary to be noticed to answer the controversy.

5. Sec. 6 of the old Code provided the following five classes of crimin