K.S. LODHA, J.—This revision has been filed by Moda Ram and others against the orders of the learned Sub-Divisional Magistrate, Jodhpur, dated 24.1.84 and 12.3.84 in proceedings u/s 145 Cr. P. C. By the order dated 24.1.84, the learned Magistrate, drew a preliminary order as also attached the property u/s 146 Cr. P.C. By the later order dated 12.3 84, the learned Magistrate refused to vacate the attachment.

2. The facts giving rise to this revision briefly stated are that the non-petitioner Shri Prithvi Raj filed an application under sections 145 and 146 Cr. P.C. before the learned Sub-Divisional Magistrate, Jodhpur, alleging that in village Jaliwara Khurd, there existed a common chowk, situated in front of the houses of the applicant as well as the non-applicants, who are petitioners in this revision, which was being used by all the villagers for the purposes like marriages, deaths etc but now the non-applicants i. e. the present petitioners were claiming this land to be their exclusive property and are trying to raise a wall around it and are using this chowk as a kiln. The applicant, therefore, prayed that proceedings u/s 145 Cr. P. C. should be taken against the non-applicants and the property should be attached. It was on this application that the learned Magistrate after seeing the police report, passed the order dated 24.1.84. The present petitioners thereafter appeared and filed their objections or reply claiming that the provisions of section 145 Cr. P.C. were not applicable in the present case as according to the applicants own showing the dispute was not with regard to possession of the land but with regard to its user. They also alleged that there was no apprehension of breach of peace nor was there any such imminent danger and that the non-applicants had been in peaceful possession of this property since long. It was also mentioned that a revenue suit had already been filed in respect of this land and, therefore, also the proceedings u/s 145 Cr. P. C. were uncalled for. After hearing the parties, the learned Magistrate refused to vacate his earlier order, Hence this revision.

3. I have heard the learned counsel for the parties and have gone through the record.

4. A preliminary objection has been raised by the learned counsel for the non-petitioners that the petitioners could not have filed this revision against the orders of the learned Magistrate direct before this Court without first moving the Sessions Court. It was urged that even though the powers u/s 397 can be exercised concurrently by the Sessions as well as this Court, it is the duty of the party to approach the lower court first. In this connection, reliance was placed upon a decision of this Court reported in Hajia Lishar v. State of Rajasthan(l . On the other hand, the learned counsel for the petitioners urged that a revision can directly be entertained by this Court against the order of the learned Magistrate and the petitioner is not bound to approach the Courts of Sessions. It was contended that the powers u/s 397 are concurrent but once, a party approaches the Court of Sessions and does not get the relief, he is debarred from filing a second revision before this Court u/s 397 and, therefore, the party has a choice either to approach the Court of Sessions or this Court direct. Reliance in this connection was placed upon Jagir Singh vs. Ranbir Singh (2), In re Puritipati Jagga Reddy(3), Satyanarayan v. Kantilal(4), Kesavan vs. Sreedharan (5) and Mohan Lal vs. Prem Chand (6). Having given my careful consideration to the rival contentions, I am of the opinion that this revision can be entertained. The authority of this Court in Haji alishers case (supra) is clearly distinguishable because that was not a case u/s 397 Cr. P. C. but a case u/s 438 Cr. P. C. There is no bar to a second application u/s 438 Cr. P. C. being entertained by this Court after one has been rejected by the Court of Sessions whereas there is clearly such a bar u/s 397 (3) Cr. P. C. and

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