( 1 ) THIS revision petition is directed against the order of the Sub-Divisional magistrate, Pandavapura Sub-Division, passed in a proceeding initiated under S. 145 of the Code of Criminal Proredure. That was a preliminary order made by the Sub-Divisional Magistrate under sub-sec, (i) of Section 145 on 30-10-1972. The order reads : "on a careful consideration of the application filed by the first party member through his Counsel on 19-10-1972 praying action under s. 145 Crpc and the affidavit filed by him, I am satisfied that there is ' litigation between the I and II party members over the scheduled property with regard to its possession which is likely to cause breach of peace over the same. I, therefore, order and direct that the I and II party members shall appear before this Court at 11-00 a. m. on 25-11- 1972 at Pandavapura either in person or by a Pleader and put in written statements of the respective claims in respect of the claims of actual possession of the subject of dispute and further to put in such documents or adduce by putting in affidavits, the evidence of such persons as they rely upon in support of such claims. In the meantime the scheduled property is hereby attached, Both the parties are prohibited from entering upon or interfering with the schedule property in any manner. The Tahsildar, Pandavapura is hereby appointed as Receiver to take possession of the scheduled disputed property until further orders from this Court. " ( 2 ) THE preliminary order is challenged by Mr. Venkataranga Iyengar, the learned Counsel appearing on behalf of the petitioner on three grounds: (1) It is not disputed in this case that the member of the first party had instituted a suit OS. 319 1971 in the Court of the Munsiff at Srirangapatna for permanent injunction. Though the said suit had been withdrawn, but the effect of the same is that the first party member is precluded to institute a fresh suit. Further, he submitted that since a civil suit had been instituted by the member of the first party, the Magistrate had no jurisdiction to initiate proceedings under S. 145 Crpc. Reliance was placed on a decision in Multani v. Shah Abdu Turab, 1962 Mys. L. J. 294, (2) Without recording the sworn statement of the petitioner (member of the first party), the sub-Divisional Magistrate passed the impugned order. Reliance was placed on a decision in Multani v. Shah Abdu Turab, 1962 Mys. L. J. 294, (2) Without recording the sworn statement of the petitioner (member of the first party), the sub-Divisional Magistrate passed the impugned order. It was urged that it was obligatory on his part to have recorded the sworn statement of the petitioner, and this is an infirmity which vitiated the order. (3) The Sub-Divisional magistrate has not recorded any reasons of his being satisfied with regard to likelihood of the breach of peace, nor it can be said from the material on record, that after application of his mind and on being satisfied with regard to apprehension of breach of peace, he passed the impugned order. ( 3 ) WITH regard to the first contention, the argument of the learned Counsel for the petitioner was that the Sub-Divisional Magistrate omitted to notice that the litigation to which he had made reference was the litigation in OS. 139/71 on the file of the Munsiff of Srirangapatna. That suit was instituted by the member of the first party for injunction, and that the subject matter of the said suit was the property in dispute in this proceeding Though the suit was withdrawn by the plaintiff (member of the first party), since the plaintiff is precluded from instituting a fresh suit under Or. 23 of CPC, the effect of the same is that the Sub-Divisional magistrate had no jurisdiction to initiate proceedings under S. 145 Crpc. Dependence was placed on a decision of this Court in Multani v. Shah abdu Turab Qudari, (1 ). It was laid down m the above cited case that if there is a decision of a Civil Court, the Magistrate is expected to respect and sustain it. It was further observed therein that the decision of the civil Court is not to be confined to final decisions of suits by way of decrees. Even when an interim injunction is granted for the duration of the ponding suit for perpetual injunction, the Civil Court does come to a prima facie finding that the party in whose favour it grants the injunction is in possession of the property, in respect of which the injunction is granted. It is not disputed before me that no interim order of injunction had been made in OS. 319/71. It is not disputed before me that no interim order of injunction had been made in OS. 319/71. The essence of proceeding under Sec. 145, crpc is the determination of the question as to who is in possession. When no finding has been recorded by the Civil Court with regard to possession, mere institution of the suit has no efficacy in the proceeding under S. 145 Crpc. Further, even if a civil suit is instituted, the institution of the same ipso facto will not take away the jurisdiction of the Magistrate from initiating proceeding under S. 145 Crpc. Reviewing the cases on the point, this matter was expiated in a decision of this Court in imambu v. Hussenbu, 1960 Mys. L. J. 192. It was observed in that case that :"a Magistrate acting under S. 145, Cr. PC ought to respect any recent decision given by a competent Civil Court on the question of possession. The decision given by the Civil Court does not deprive him of the jurisdiction conferred jay S. 145, but it is a question of judicial propriety which has now ripened into a rule of law. As a corollary, if the Civil Court decides the question of possession for the purpose of giving an interim relief, the Magistrate acting under S. 145 should respect that decision as well. But the mere pendency of a suit in a Civil Court is wholly an irrelevant circumstance. " ( 4 ) THEREFORE it is difficult to accede to the first contention. A point of law is posed in the second contention to the effect that in a proceeding under S. 145 Crpc it is obligatory in law to record the sworn statement of the petitioner. Sub-sec. " ( 4 ) THEREFORE it is difficult to accede to the first contention. A point of law is posed in the second contention to the effect that in a proceeding under S. 145 Crpc it is obligatory in law to record the sworn statement of the petitioner. Sub-sec. (1) of S. 145 Crpc provides: "whenever a District Magistrate, Sub-Divisional Magistrate or magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or tne boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating, the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and further requiring them to put in such documents or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims. " ( 5 ) THE remaining portion of S. 145 Crpc is not relevant for our purpose. In view of the language employed in sub-sec. (1) of S. 145 Crpc, it cannot be said that the recording of sworn statement of the petitioner is obligatory or a condition precedent to passing a preliminary order. All that is required of the Magistrate is to be satisfied himself as envisaged in that sub-section before he could pass a preliminary order under sub-sec. (1) of S. 145. That was the ratio of the decision of the Supreme Court in R. H bhutani v. Mani J. Desai, AIR 1968 SC 1444 . It was observed by the Supreme Court at page 1449 of the Report :"the proposition that the Magistrate before proceeding under s. 145 (1) must, as a rule, call for a police report where he is moved by a private party, or that the absence of a police report is a sure indication of the absence of possibility of breach of peace, is not warranted by the clear language of the section which permits the Magistrate to initiate proceedings either on the police report or "on other information". The words "other information" are wide enough to include an application by a private party. " ( 6 ) THEREFORE the second contention is unsustainable. There appears to be considerable force in the third contention. The petition under S. 145 was filed on 19-10-1972. The preliminary order under sub-sec. (1) of S. 145 was passed on 30-10-1972, namely, eleven days after filing the petition. The civil suit OS. 319/71 which was filed in the Court of the Munsiff at Srirangapatna was in respect of the disputed property. These facts are not disputed before me. It was strenouously argued on behalf of the petitioner that if the matter was of emergent nature and there was apprehension of dispute which was likely to cause a breach of the peace, the application would not have been allowed to remain without passing any order. These circumstances, according to the learned Counsel for the petitioner, indicate that the Magistrate without being satisfied himself with regard to the apprehension of breach of peace as envisaged in S. 145 (1) Crpc has passed the impugned order. He urged that the main object of making an application under S. 145 Crpc was to agitate civil right in a Criminal Court. Tt cannot be said that the arguments arc devoid of force. Not only the Magistrate passed a preliminary order under sub-sec. (1) of S. 145. He has also made an order attaching the property in dispute. Presumably that order is made under the third proviso to sub-sec. (4) of Section 145 Crpc. That provision reads :"provided also that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section. " ( 7 ) THE emphasis in that proviso is on the word 'emergency'. If the matter was so emergent, one tails to understand how could an application be left for eleven days without making any order. It is not in dispute in this case that there was civil litigation between the parties in respect of the subject matter of dispute in this proceeding. It can be reasonably inferred from the circumstances of this case that the attempt of the member of the first party was to agitate civil right in Criminal Court. It is not in dispute in this case that there was civil litigation between the parties in respect of the subject matter of dispute in this proceeding. It can be reasonably inferred from the circumstances of this case that the attempt of the member of the first party was to agitate civil right in Criminal Court. There is far too great a tendency amongst private individuals to file an application under S. 145 Crpc simply as a move which they imagine may put them in an advantageous position in the subsequent litigation as against the party with whom they are at logger-heads. This misuse of the provisions of law requires to be discouraged. It must be mentioned here that the proceeding under S. 145 of the Crpc is a summary proceeding and the essence of the proceeding is as mentioned earlier the determination of the question as to who is in possession. It cannot be made basis to agitate all sorts of points. Therefore it has to be concluded that the Sub-Divisional magistrate without application of his mind and without being satisfied as to the likelihood of breach of peace, has made the impugned order. Consequently on account of this infirmity, the order so passed is vitiated. This revision petition is therefore allowed, and the order passed by the Sub-Divisional Magistrate on 30-10-1972 is set aside. --- *** --- .