An order under Section 146(1) of the Code of Criminal Procedure terminates the proceeding under Section 145.

JUDGEMENT

R. N. Misra, J. :- Members of the first party in a proceeding under S.145 of the Code of Criminal Procedure are the petitioners and they challenge the order of the learned Sessions Judge of Ganjam passed on a revision application by members of the second party.

2. On 12-6-1975, on the report made by the local police the Executive Magistrate at Chatrapur drew up a proceeding under Section 145 of the Code of Criminal Procedure and made a preliminary order. Members of the first party moved the learned Magistrate that in spite of the initiation of the proceeding, members of the second party were threatening to forcibly cultivate the property. Being satisfied that there was grave emergency concerning the disputed properties, the learned Magistrate attached the properties under Section 146(1) of the Code and directed appointment of a receiver. While doing so, he indicated :-

".......... Proceeding under Sec. 145 Criminal Procedure Code has already been started in this Court and it will continue ..........."

The order attaching the property, appointing a receiver and directing the proceeding under Section 145 of the Code to continue was subjected to revision before the learned Sessions Judge at the instance of the members of the second party. The learned Sessions Judge overruled the objection of the members of the first party that no revision lay as the impugned order was an interlocutory one. He came to hold that there was no material for the conclusion that there was existence of emergency which would enable invoking application of Section 146 of the Code and indicated that it was open to the Magistrate on the materials on record to find out which party was in possession. This revision application is directed against the order of the learned Sessions Judge.

3. In view of the order of the learned Single Judge the revision application has been placed for hearing before Division Bench.

4. Mr. Mohanty for the opposite parties raised a preliminary objection regarding maintainability of this revision application relying upon the provisions of Section 397 of the Code of Criminal Procedure. Sub-Section (3) of that Section provides :-

"If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."

Members of the second party were the applicants before the learned Sessions Judge and this revision has been filed by member of the first party. The embargo imposed by Section 397(3) of the Code is not thus applicable to the present case. The preliminary objection must, therefore, be overruled.

5. Two questions arise for determination :-

(i) Whether after the order under Section 146 was passed by the learned Magistrate, a proceeding under Section 145 of the Code could be continued ?

(ii) Whether there was material for the satisfaction of the learned Magistrate to make the order under Section 146(1) of the Code ?

6. Mr. Ramdas for the petitioners claims that the order under Section 146(1) of the Code did not bring the proceeding under Section 145 to an end. Therefore, in spite of the attachment and appointment of receiver, the learned Magistrate had jurisdiction to continue the inquiry and find which party was in possession on the date of the preliminary order Sub-Section (1) of Section 146 of the Code is in the following terms :-

"If the Magistrate at any time after making the order under Sub-Section (1) of Section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof.

Provided ..........."

The order of the learned Magistrate was clearly one