ORDER The petitioners are the ‘B’ party counter-petitioners in M.C. No.84/85(D) on the file of the Executive First Class Magistrate & Revenue Divisional Officer, Sankari. The proceedings in the trial Court were initiated at the instance of the second respondent ‘A’ party against the petitioners by a petition dated 10th October, 1985. On this petition the Executive First Class Magistrate & Revenue Divisional Officer, Sankari, directed the Tahsildar, Sankari to offer his remarks through a special messenger at once. This order was made on 11-10-1985. In pursuance thereof, the Tahsildar, Sankari appears to have made an independent enquiry during the course of which he examined the second respondent ‘A’ party counter petitioner on 8-11-1985 and had also examined the first petitioner herein (first counter petitioner of ‘B’ party) on the same day. The Tahsildar appears to have obtained a document of the year 1936, though it is not clear from whom it had been obtained. Another document of the year 1950 had also been obtained by him apart from a field map and some chitta extracts. The Tahsildar has also examined during his enquiry the Village Administrative Officer of Manjakalpatti, who obviously must have given him the chitta. A report was sent by the Tahsildar to the trial magistrate on 22nd November, 1985, on the basis of which a preliminary order under Sec.145(1), Crl. P.C. was made on 11-12-1985. I find that this order does not appear to have been served on the concerned parties. However, the successor Revenue Divisional Officer-cum-Executive First Class Magistrate has passed another preliminary order on 13-1-1986 which appears to be the basis of these proceedings. 2. The petitioners came up before this Court on the said preliminary order, to quash the proceedings, in Crl. M.P. No.1127 of 1986 and stay of proceedings was also obtained in Crl. M.P. No.1126 of 1986. However, ultimately Crl.M.P.No.ll27of 1986 was dismissed by S.T. Ramalingam, J. on 9.9.1986 with the following observations: “No ground has been made out to interfere with the preliminary order passed by the 1st respondent. It is open to the petitioners to urge the points before him in the written statement that he is called upon to file”. “With this direction, the petition is dismissed”. After this, the proceedings in the trial Court were continued and the final order under Sec.145(6), Crl. It is open to the petitioners to urge the points before him in the written statement that he is called upon to file”. “With this direction, the petition is dismissed”. After this, the proceedings in the trial Court were continued and the final order under Sec.145(6), Crl. P.C, was passed on 12-12-1988 holding that the second respondent (‘A’ Party counter petitioner) was in possession on the date of the passing of the preliminary order on 13.1.1986 and further, forbidding any disturbance of the possession of the second respondent by the petitioners until the second respondent (‘A’ party counter petitioner) was evicted therefrom in due course of law. This final order is sought to be challenged in this revision. 3. A few facts may have to be stated at this juncture. The first petitioner and the second respondent are brothers. According to the second respondent the properties which are the subject matter of dispute in the impugned proceedings had fallen to his share by virtue of a registered partition deed dated 6.6.1950 between him and his elder brother, the first petitioner. The schedule of property mentions that the dispute concerns 7.29 acres of land in S.No.95/2 in Manjakkalpatti village. The second respondent has stated even in the petition that he had filed a suit before the District Munsif's Court, Tiruchengodu in O.S. No. 15 of 1984 for permanent injunction against the petitioners, since it was apprehended that the petitioners were attempting to cause breach of peace. 4. After the matter was remanded to the trial Magistrate by this Court on 9.9.1986, the second respondent has filed a statement on 2.3.1987. It appears that no documents had been filed along with the said statement. The petitioners filed their statement before the trial Magistrate on 6.7.1987 wherein in the last paragraph they have prayed that the magistrate may make a local inspection of the properly, examine witnesses (emphasis supplied by me) with reference to the actual possession and environment and drop the proceedings under Sec.145, Crl.P.C. Along with the said statement the petitioners (‘B’ party counter petitioners) have produced a sale deed dated 7.5.1971, one chitta extract and original third party affidavits. 5. It is obvious that no witness had been examined before the trial Magistrate. 5. It is obvious that no witness had been examined before the trial Magistrate. Before I proceed to consider the nature of the order passed by the trial magistrate and of its being in consonance with law or otherwise, it is better to look at the provisions of Sec.145(4), Crl.P.C, which concerns itself with the enquiry to be made by the magistrate before a final order under Sec. 145(6) could be passed. 6. Sub-sec.(4) of Sec.145, Crl.P.C. enables both parties and adduce oral and documentary evidence and the Magistrate is bound not only to receive all such evidence as may be produced but also is enpowered to take such further evidence, if any, as he thinks necessary. The Magistrate, under the new Code 1974, cannot dispose of a proceeding on the basis of affidavits and therefore, the evidence of witnesses will be essential for deciding the question of possession. The evidence contemplated includes both oral and documentary. In order to enable parties to adduce evidence reasonable opportunity has to be given to produce documents and witnesses and the Magistrate will also have a duty to summon such witnesses as may be required by either party. This procedure prescribed under Sub-sec.(4) must be followed for it is mandatory and the oral evidence adduced will have to be recorded and documents properly proved according to the rules of evidence. After the production of the oral and documentary evidence, the Magistrate will have to decide the question of possession on the evidence placed before him, which necessarily implies discussion of the evidence placed before him. 7. I find, on the facts of this case, that the trial Magistrate had originally acceded to the request of the petitioners for a local inspection, but ultimately desisted local inspection on the basis of the prayer made by the respondent that such inspection was not necessary. 8. 7. I find, on the facts of this case, that the trial Magistrate had originally acceded to the request of the petitioners for a local inspection, but ultimately desisted local inspection on the basis of the prayer made by the respondent that such inspection was not necessary. 8. Mr.I.Mahaboob Sheriff, learned counsel for the petitioners put forth before me two main contentions: (1) The enquiry contemplated under Sec.145(4), Crl.P.C, which is mandatory had not been done in this case and the petitioners had no opportunity to adduce evidence though they had stated in the written statement that witnesses will have to be examined; (2) Basing his contention on Ram Suner Puri Mahant v. State of U.P. & others Ram Suner Puri Mahant v. State of U.P. & others 1985 L. W. (Crl.) 84: A.I.R. 1985 S.C. 472 where in the Supreme Court has laid down that when a civil litigation was pending in respect of the property wherein the question of possession was involved. initiation of a parallel criminal proceedings under Sec.145 of the Code would not be justified, he would contend that though the petition filed by respondent No.2 himself would show that a civil proceeding was pending on the very same subject matter, it had not been effectively taken note of by the trial Magistrate either while initiating the proceedings under Sec.145, Crl.P.C. or while terminating the same by his order under Sec.145(6). 9. Learned counsel would further refer to Govindasamy Pillai v. Sub-Inspector of Police (Law & Order), Arantangi & others Govindasamy Pillai v. Sub-Inspector of Police (Law & Order), Arantangi & others 1987 L.W. (Crl.) 111 wherein K.M. Natarajan, J. applying the dicta of the Supreme Court aforementioned had held that in view of the fact that the parties were agitating the same subject matter in a competent civil Court, parallel proceedings should not be allowed to go on by wasting the public time. In Magdoom v. Jalal & another Magdoom v. Jalal & another 1988 L.W. (Crl.) 89 Padmini Jesudurai, J. Basing her conclusion on the enunciation of law by the Supreme Court in 1985 L.W. (Crl.) 84: A.I.R. 1985 S.C. 472, held that she had no other option except to terminate the proceedings commenced by the executive Magistrate since when a civil litigation was pending between the same parties in respect of a land, parallel proceedings under Sec.145, Crl.P.C, ought not to be conducted and whatever relief that could be obtained under Sec.145 would also be available to the parties in the civil Court. 10. Per contra, Thiru P. Jagadeesan appearing for the second respondent would submit that in view of the prior disposal of the quashing petition by this Court in Crl. M.P. No. 1127 of 1986 the same aspects cannot be re-agitated again. Relying upon the following decisions, (a) Nata Paahan and others v. Banchha Daral Nata Paahan and others v. Banchha Daral A.I.R. 1968 Orissa 36; (b) Mohinder Singh v. Dilbagh Singh Mohinder Singh v. Dilbagh Singh 1977 Crl.L.J. 1029;(c) Gee Varghese Yohannan & another v. P.J.Abraham Kathanar & others Gee Varghese Yohannan & another v. P.J.Abraham Kathanar & others 1975 Crl. L.J. 985 and (d) Thayammal and others v. Krishna Chetty and others Thayammal and others v. Krishna Chetty and others 1978 L.W. (Crl.) 128 he would contend that though the proceeding under Sec.145, Crl.P.C, may not be expedient when civil litigation was pending such proceeding cannot be held to be without jurisdiction. He would also content that the record in patta proceedings would indisputably show that the second respondent was in possession of the propery not only earlier but even on the date of the preliminary order. He would further contend that the injunction petition filed by him in the civil Court was withdrawn by him for certain reasons and that cannot be a ground to interfere in a proceeding initiated legally under Sec.145, Crl.P.C. 11. He would further contend that the injunction petition filed by him in the civil Court was withdrawn by him for certain reasons and that cannot be a ground to interfere in a proceeding initiated legally under Sec.145, Crl.P.C. 11. Referring so the decision of the Supreme Court in 1985 L.W. (Crl.) 84A.I.R. 1985 S.C. 272, he would contend that Sengottuvelan, J. in Vallimalai v. Ayyannan Ambalam Sengottuvelan, J. in Vallimalai v. Ayyannan Ambalam 1986 L.W. (Crl.) 110 and again in Authimoolam v. A.Surulivel Naicker and others Authimoolam v. A.Surulivel Naicker and others 1986 L.W. (Crl.) 272 had considered the effect of the dicta of the Supreme Court and had observed that on the strength of the said decision it cannot be considered that once there is a civil proceeding no proceedings under Sec.145, Crl.P.C. can be instituted. 12. I have carefully considered the rival contentions put forward by the counsel on either side. Even without going into the question of the pendency of a civil proceeding the order of the trial magistrate in this case will have to be set aside for noncompliance of the mandatory provisions ofSec.145(4), Crl. P.C. The order does not indicate about the marking of any exhibits by either party. Obviously no oral evidence has been recorded. There is no endorsement that the parties had not produced any evidence, either oral or documentary. On the contrary, I find that the very statement of the petitioner, specifically wants examination of witnesses on the aspect of possession. That opportunity had not been afforded by the trial Magistrate to the petitioners. This is a very serious lacuna. After the coming into force of the Crl.P.C, 1974, possession cannot be decided on the basis of affidavits alone. Further, the trial magistrate has not at all considered the effect of the documents filed by the petitioners in the impugned order. Though reference has been made to the documents said to have been produced by the second respondent, I do not find from the statement that any such document had been produced by him before Court. All that I amable to see from the records is that during an enquiry by the Tahsildar at the instance of the trial magistrate some documents had been obtained from either of the parties by the Tahsildar and sent to Court along with his report. These documents cannot be legal evidence without proper proof. All that I amable to see from the records is that during an enquiry by the Tahsildar at the instance of the trial magistrate some documents had been obtained from either of the parties by the Tahsildar and sent to Court along with his report. These documents cannot be legal evidence without proper proof. Once they are legally brought on record the petitioners will have he right of cross-examination. Looked at from any angle the impugned order is liable to be set aside. 13. The Supreme Court in 1989 L.W. (Crl.) 80, has authoritatively laid down that parallel proceedings should not be permitted to continue, especially when possession was being examined by a civil Court and parties will be in a position to approach the civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during the pendency of the dispute. Of course, in the said decision, the question of possession/injunction involved in the suit was gone into by the civil Judge and the suit was dismissed and there was an appeal pendiag at the relevant time. It was in that context of the pendency of the appeal the observations were made by the Supreme Court. The position on the facts of the present case cannot be different, if one keeps in mind the principle behind the observations made by the Supreme Court. In respect of the same property Civil proceedings have been initiated even in 1984 and they are still pending. The second respondent who had initially filed a petition for injunction had withdrawn it, be it for whatever reason. If his possession is certain and definite, there could not be any difficulty for his approaching the civil Court and getting an order of injunction in his favour. The observations of the Supreme Court will equally apply to the facts of this case for, the parties can approach the civil court for interim orders, whatever, be the nature. One cannot overlook that the fight is between two brothers regarding this property. I am of the firm view that the dicta laid down by the Supreme Court and followed by two learned Judges of this court will squarely apply to facts of this case as well. 14. In the normal course when the mandatory provisions of Sec.145(4) had not been followed I would have remanded the matter for fresh enquiry. I am of the firm view that the dicta laid down by the Supreme Court and followed by two learned Judges of this court will squarely apply to facts of this case as well. 14. In the normal course when the mandatory provisions of Sec.145(4) had not been followed I would have remanded the matter for fresh enquiry. But taking the background of the case coupled with the pendency of the civil proceedings, I do not think that any useful purpose will be served by remanding the matter for a fresh decision because interim orders can be obtained in the pending suit by either of the parties. 15. The order of the trial magistrate appears to be absolutely perfunctory. The reference to revenue records which do not form part of the legal evidence in this case is one other aspect which will be sufficient to set aside the impugned order. In a case of this type when the civil Court is seized of the matter if the magistrate was of the view that there was likelihood of breach of peace, proceedings ought not to be initiated under Sec.145, Crl. P.C. but recourse to Sec.107, Crl. P.C., may have to be made. 16. The earlier dismissal of Crl.M.P. No.1127 of 1986 by S.T. Ramalingam, J. can have no bearing in deciding this revision after the final orders have been passed. 17. In view of my reasonings aforementioned, this criminal revision deserves to be allowed and it is accordingly allowed. The impugned order is set aside. B.S. ----- Petition allowed.