S. C. MOHAPATRA, J. ( 1 ) FIRST Party in a proceeding under section 145, Criminal Procedure Code is the petitioner in this Criminal Revision assailing the order dated 19. 3. 1987 cancelling the preliminary order by the Executive Magistrate in exercise of power under section 145 (5/, Cr. P. C. and thereupon dropping the proceeding. ( 2 ) ON the basis of an application with two affidavits and documents filed by the petitioner, a proceeding under section 145, Cr. P. C. was initiated and preliminary order was passed on 14/6/1985. The house in dispute was attached and was kept in custody of the Officer-incharge of the Police-station. After both the parties filed their written statements, the case was posted for enquiry. At that stage members of the second party filed an application for exercise of power under section 145 (5) Cr. P. C. By order dated 6/12/1985 after hearing both parties, the petition of the second party was rejected and parties were directed to produce witnesses. On 18/1/1986, P. W. 1 was examined whose examination-in-chief was completed on 23/1/1986. ( 3 ) WHEN the case was being adjourned from date to date and 2nd party had not yet cross- examined P. W. 1, a petition was again filed on 13/11/1986 on their behalf for second party for dropping the proceeding. Case of the second party in that petition is that on the death of one D. Guru Murty Subudhi, the Sub-divisional Magistrate, Berhampur was moved by them for assistance to take delivery of the possession of the house in question and on the basis of an order on such petition dated 1/6/1985, possession has already been taken on the next day ie. 2/6/1985. An application for restoration of possession had been filed by the widow and daughter of deceased Guru Murty and for punishing the members of the second party for contempt having taken possession when the property was under attachment. Criminal revision was also filed before the learned Sessions Judge, Berhampur against the order dated 1. 6. J985 and the said revision has been dismissed on 14/7/1986. In view of the aforesaid order in revision, the delivery of possession having stood of firmed, the proceeding under section 145, Cr. P. C. would be no more maintainable. Criminal revision was also filed before the learned Sessions Judge, Berhampur against the order dated 1. 6. J985 and the said revision has been dismissed on 14/7/1986. In view of the aforesaid order in revision, the delivery of possession having stood of firmed, the proceeding under section 145, Cr. P. C. would be no more maintainable. First Party resisted the aforesaid petition for dropping the proceeding on the ground that the possession forcibly taken from the Police cannot be a ground to drop the proceeding when the learned Sessions Judge made the following observation while dropping the proceeding. The order in question passed by the Magistrate dated 1. 6. 1985 was strictly speaking not a judicial order in any legally constituted proceeding so as to attract the revisional powers of this court to be interfered with and as such the revision is not tenable. The revision filed on as such is dismissed. The 1st party claimed that the proceeding which is part-heard cannot be dropped till the evidence on both the sides is recorded and the case is heard in full. ( 4 ) LEARNED Magistrate held that after death of D. Guru Murty Subudhi the tenancy right of the 1st party terminated. The local Police after enquiry took necessary action and delivered possession of the suit house to the land owners on 2. 6. 1985 and in view of the order passed by the learned Session Judge on 5. 3. 1987, M C. No. 202/135 was dropped. Accordingly, there is no apprehension of breach of peace and therefore, the preliminary order is to be cancelled. The custodian was discharged. This order is assailed in the present revision. ( 5 ) LEARNED counsel for the petitioners submitted that there is no scope for cancellation of the preliminary order in the aforesaid circumstances of the case and all actions Were high-handed, being not in accordance with law. Learned counsel for the opposite parties (2nd party) committed that the right, if any of the 1st party can be adjudicated in appropriate court and the order ought not to be interfered with. Rival contentions of both the parties requires careful consideration. Learned counsel for the opposite parties (2nd party) committed that the right, if any of the 1st party can be adjudicated in appropriate court and the order ought not to be interfered with. Rival contentions of both the parties requires careful consideration. ( 6 ) THERE is no dispute that the members of the second party are in possession of the house on the strength of the order of the Sub-divisional Magistrate which has been held by the learned Additional Sessions Judge not to be a judicial order. No statutory provision has been brought to my notice where under the Sub-divisional Magistrate has been authorised to deal with an application of the nature where he can give Police protection to remove the property in dispute in a proceeding under section 145, Cr. P. C. from the custody of the person kept in-charge by a judicial order under section 145, Cr. P. C. Accordingly, there can be no doubt that the order of the Sub. divisional Officer is a nullity. Officer-in charge of the Police-station in charge of the property should have brought the fact to the notice of the Court when such order was received by him. Learned Excutive Magistrate ought to have considered the effect of the possession on the basis of the order dated 1/6/1985. On the basis of the finding of the learned Additional Sessions Judge that the order was not a judicial order, learned Magistrate should have taken serious view of the matter since by his order, the disputed house remained in charge of the Police and without any direction from the learned Magistrate, there was no scope for handing ,over possession. I would have taken a serious view of the matter in case, the matter would have been brought to notice of this Court immediately. No useful purpose would be served by reopening the question long three years after. I can only express that the Sub-divisional Magistrate ought not to have exercised executive power not sanctioned under any law to deliver possession to the members of the 2nd party when a proceeding under section 145, Cr. P. C. was pending and the property had been attached. To regularize the matter, possession of 2nd party shall be treated to be as custodian under orders of the Court since restoration of possession to the Officer-in-charge would create further complications. P. C. was pending and the property had been attached. To regularize the matter, possession of 2nd party shall be treated to be as custodian under orders of the Court since restoration of possession to the Officer-in-charge would create further complications. ( 7 ) TAKING of possession by 2nd party under the protection of Police for which there is no legal sanction when a judicial proceeding is pending, cannot be said to be an order which would have the effect for a finding that there is no likelihood of breach of peace. That would amount to giving premium to arbitrary order. Order of the learned Magistrate, therefore, cannot be sustained which is accordingly vacated. ( 8 ) FROM the order sheet it is clear that P. W. 1 is to be cross-examined by the members of the 2nd party. From that stage, the proceeding shall continue for determination of the possession with reference to the preliminary order already passed. Learned Magistrate shall make arrangement, so that the member of the 2nd party does not utilise the usufruct avialable from the house to their own benefit and such usufruct would be made available to the successful party in the proceeding under section 145, Cr. P. C. ( 9 ) IN the result, the criminal revision is allowed. The proceeding shall be completed by the Executive Magistrate who was not connected with the proceeding at any earlier stage in view of the peculiar circumstances of this case. Send back the L. C. R. at once.