SINHA, J. :- This is an application under S.561.A, Criminal P.C.

2. The facts leading to this application can briefly be stated as under :

On the basis of a report submitted by Station Officer, P.S. Dilari of district Moradabad, proceedings under S.147, Criminal P.C. were instituted before the S.D.M. The learned S.D.M. found himself unable to arrive at a definite conclusion as to which party had the right of user over the land in dispute. Therefore, by his order dated 1st November, 1868, he made a reference to the Sessions Judge of Moradabad for sending the file to a civil court of competent jurisdiction for deciding as to which party had the right to use the land.

3. Against this order, the present applicants went up in revision before the Sessions Judge of Moradabad. The Sessions Judge by his order dated 7th January, 1969, rejected the revision. The reference made to the Civil Court has also since been disposed of by the Munsif, Moradabad, through his finding dated 25th May, 1969. The Munsif sent back the file to the Magistrate along with his finding and directed the parties to appear before the S.D.M. on 31st May, 1969.

4. On 13th August, 1969, the applicants moved the present application in this Court for the proceedings pending before the Magistrate being quashed under S.561-A, Criminal P.C.

5. The principal ground on which the prayer for the proceedings being quashed is based is that S.146, Criminal P.C. is not applicable to proceedings under S.147, Criminal P.C. and, consequently, not only the order of the S.D.M. making reference to the Civil Court was illegal but that the finding given by the learned Magistrate is also inapplicable to the case and cannot be made use of by the learned Magistrate.

6. According to S.146(1B), Criminal P.C. after the finding of the Civil Court is received by a Magistrate, he has no option but to proceed to dispose of the proceedings in conformity with the decision of the Civil Court. The necessity of moving the present application has arisen because the Magistrate shall have no option except to pass an order in conformity with the finding of the learned Munsif.

7. The application first came up before a learned Single Judge of this Court. He found that though the grievance of the applicants, namely, that no reference under S.146, Criminal P.C. could be made to a civil court in proceedings under S.147, Criminal P.C. carried substance, there appeared to exist an obstacle in the way of the applicants in getting the reference order quashed. The applicants had filed a revision before the Sessions Judge assailing the order of the S.D.M. making a reference to the civil court. The revision was dismissed by the learned Sessions Judge. The applicants did not come up in revision before this court to assail the orders passed by the Sessions Judge and that of the S.D.M. It was, therefore, argued on the one hand before the learned Single Judge that the order of the Magistrate had become final between the parties. On the other side, it was argued that the order did not have the effect of res judicata and that if the court is convinced that the order of the Magistrate making reference to the civil court is illegal, it can act under S.561-A, Criminal P.C. to quash that order. The learned Single Judge felt it constituted a question of law of considerable importance and he, therefore, directed that since the matter involved a question of law of considerable importance, the papers may be placed before the Hon'ble the Chief Justice so that the matter may be decided by a larger Bench. It is thus that it has come before us.

8. Three questions arise for consideration in this case :

(1) Whether S.146, Criminal P.C. is applicable to proceedings under S.147, Criminal P.C. ?

(2) Whether because of the applicants not having filed a revision against the order of the Sessions Judge dated 7th January, 1969, the order of the Sessions Judge has become final and resort cannot be had to S.561-A, Criminal P.C. to grant any relie