The Magistrate has jurisdiction to initiate and continue the proceeding under Section 145, Cr. P. C., despite the pendency of a civil suit between the same parties in respect of the same property, if there is likelihood of a breach of the peace concerning any land or water.

R. K. DAS, J.

( 1 ) THIS is a petition by a 1st party in a proceeding under Section 145, Cr. P. C. The parties come from the same family and the dispute relates to some plots in respect of three Khatas in mouza Saheba Nagar in the district of Puri.

( 2 ) ON 16-12-64, the 2nd party filed a petition before the Subdivisional Magistrate, bhubaneswar requesting him to take action under Section 145 Cr. P. C. , as there was apprehension of breach of the peace concerning possession of the aforesaid disputed property. Shortly thereafter i. e. on 6-1-65, they also filed O. S. 3 of 1965 in the court of Munsif, Bhubaneswar in respect of the same property. In the said suit, they asked for a declaration of title and for confirmation of possession or in the alternative for recovery of possession. On 17-2-65, however, the Magistrate in pursuance of the petition of the 2nd party dated 16-12-64 passed a preliminary order under Section 145, Cr. P. C. and attached the property. The 2nd party who are the plaintiffs in the civil suit prayed for an ad interim injunction for restraining the defendant-petitioners from entering upon the disputed property. Ad interim injunction was granted, but it was later on vacated after the petitioners filed objections before the civil court. The 1st party-petitioners filed a petition before the Magistrate to drop the proceeding under Section 145, Cr. P. C. The magistrate, however, refused to drop the proceeding, obviously because the property was not attached by the civil court and the apprehension of breach of the peace in respect or possession of the said property was still there. Both parties filed written statements and affidavits in support of their respective possession. The learned Magistrate held that the 2nd party was in possession of the disputed land on the date of the preliminary order and was entitled to remain in possession of the same until evicted in due course of law. It is against this order, the 1st party has filed this revision petition.

( 3 ) THE main contention of Mr. Roy, learned counsel for the petitioners is that the proceeding under Section 145, Cr. P. C. should be quashed, in view of the pendency of the civil suit between the same parties in respect of the same property. He relied upon the decision of this Court reported in 19 Cut LT 226: AIR 1953 orissa 312, (1959) 25 Cut LT 557; (1963) 29 Cut LT 1. 11, and 31 Cut LT 839: (AIR 1966 Orissa 5 ). The case reported in 19 Cut LT 226; (AIR 1953 Orissa 312) in panua Bhoi v. Jagannath Ramanuj Das was relied upon in support of the view that the Magistrate has no jurisdiction to proceed under Section 145, Cr. P. C. where the dispute between the parties have already been taken before the civil Court. This decision has been explained by the learned Judge himself in a subsequent decision of his reported in (1960) 26 Cut LT 298 in Mst. Surja Kanti Sarafani v. Rajib Lochan Saraf. His Lordship has explained the position saying that all that was pointed out in that decision was that a final order under Section 145, Cr. P. C. is itself subject to the decision of the Revenue Officer in an appropriate proceeding where the parties are related as landlord and tenant and there is no point in allowing a proceeding under section 145, Cr. P C. to continue when the parties have already approached the revenue Officer. The question is one of propriety and not one of jurisdiction. In a subsequent decision reported in (1956) 22 Cut LT 273. Sankudia Singh v. Gadadhar Jena, the position was further explained and it was pointed out that in exceptional cases, the Magistrate where a breach of the peace is apprehended, may also start a proceeding even after the termination of the proceeding under the Orissa Tenants Relief Act, though such oases must be rare. In the case reported in (1959) 25 Cut LT 557, Champabati Dibya v. State, a regular partition suit in respect of the disputed property was pending between the same parties. It was held that once the parties have moved