I. P. SINGH J. ( 1 ) PANCHAM and Bechan applicant has filed this application u/s 482 Cr. P. C for getting quashed the entire proceedings pending u/s 145, Cr. P. C. in the court of S. D. M. Ballia in case No. 87 of 1983 (wrongly mentioned as no. 57 of 1983 in the application) and also for getting quashed the preliminary order dated 3-11-1983 and another order passed u/s 146 Cr. P. C. dated 31-12- 1983 which confirmed attaching the property in dispute and appointing receiver thereof. ( 2 ) THE matter is at admission stage though counter affidavit of Sita Ram, O. P. I. has been filed in pursuance of notice of court. ( 3 ) IT appears that on the report of S. P. S. Baraiya, district Ballia dated 1. 11. 83, stating that there existed a dispute between the parties over a number of plots mentioned therein, situated in Bishanpura P. S. Baraiya, giving rise to an apprehension of breach of peace, SDM, Ballia passed preliminary order dated 3-11-1983 fixing 11. 11. 83 for filing written statements by the parties. On that date applicant Pancham Bechan did not appear and did not file written statement. He asserts he was not served for that date. The opposite-party Sita Ram heard on his application on that date and order u/s 146, Cr. P. C u/s passed holding that there was an emergency and directed attachment of plots in dispute and simultaneously appointed Sri Ambika Tewari, Advocate, as receiver of the plot in dispute. The receiver was also to proceed to the spot to effect the said attachment and thereafter to manage the same. ( 4 ) THE applicant has, however, mentioned that he filed his written statement on 14-11-83 and till then Sita Ram opposite party had not filed any written statement. Neverthless he was taken by surprise when Sri Ambika Tewari, Advocate, along-with Sitaram opposite party visited the spot on 24- I 1-83 and represented himself to be receiver appointed by the court and was to attach the plots in dispute and thereafter to auction the said land for Rabi crop. He further contended that with the help of his counsel he inspected the file in question in the court on 25. 11. He further contended that with the help of his counsel he inspected the file in question in the court on 25. 11. 83 and was taken aback to find that an application dated 11-11-83 had been placed on the record and the order of attachment and appointment of receiver had been obtained on that on 11-11-83. Therefore, he moved an application on 25-11-83. whereon the S. D. M. stay ed the execution of the auction upto 28-11-83. A few adjournments resulted on fixing 31-12-83 for orders. On that date the stay order was set aside with the result that the earlier order dated 11-11-83 was confirmed. It was further contended that the same property had been the subject matter of the litigation since 1967 between the parties in revenue courts and finally Pancham applicant Wall the case from the Board of Revenue on 9. 3. 83. Sita ram opposite party filed writ petition in the High Court against the decision of the Board of Revenue which was admitted and still pending. ( 5 ) IT was contended that on account of the pendency of the matter in the High Court with respect to the same property between the same parties proceedings u/s 145,cr. P. C. or for that matter u/s 146 Cr. P. C. on the basis of the police report dated 2-11-83 were misconceived, without jurisdiction and illegal. It was further disclosed that earlier to the initiation of proceedings u/s 145 Cr. P. C. action u/s 107/116, Cr. P. C. had already been taken between the parties. It was reiterated that even if some apprehension of breach of peace had again arisen between the parties recourse could have been and ought to have been taken u/s 107/116 Cr. P. C. and not u/s 145 Cr. P. C. in view of the pendency of the proceedings in the civil or revenue courts. ( 6 ) FOR these reasons, the above prayer for quashing the proceedings u/s 145, Cr. P. C. and orders dated 3-11-83 and 31-12-83 has been made. ( 7 ) IN the counter affidavit, Sitaram, 0. P. no. 1 has vouched that plots involved in the proceedings u/s 145 Cr. P. C. were the subject matter of suit no. 348 of 1974, Sitaram v. Pancham, for declaration and partition. It was decreed on 17-3-75. Pancham filed appeal no. 183 of 1975, Pancham v. Sitaram. ( 7 ) IN the counter affidavit, Sitaram, 0. P. no. 1 has vouched that plots involved in the proceedings u/s 145 Cr. P. C. were the subject matter of suit no. 348 of 1974, Sitaram v. Pancham, for declaration and partition. It was decreed on 17-3-75. Pancham filed appeal no. 183 of 1975, Pancham v. Sitaram. It was dismissed on 29-9-75 by the Add I. Commissioner, Varanasi Division, Varanasi and the decree was confirmed. Pancham filed second appeal in the High Court which remanded the case on 9-3-79 to the trial court to frame additional issues. Against the orders of remand civil writ petition no 4875 of 1979 Sitaram and others v. Board of Revenue was filed in which remand order dated 9-3-79 was stayed. ( 8 ) IN this way the impression given by the applicant in his application that he finally won the case (suit) from the Borad of Revenue on 9. 3. 79 is wrong. It is still pending final decision. ( 9 ) SITARAM, O. P no. 1 has further vouched that the applicant (Pancham) wanted to grab (take) possession over the entire land even though Sita Ram was in possession over half portion thereof. According to him, police report dated 1. 11. 83 presented correct facts and there existed a dispute between the parties over the land in question giving rise not only to an apprehension of breach of peace but there was imminent danger of breach of peace giving rise to possibility of murder even. ( 10 ) HE further vouched that Pancham duly served for 11/11/83 and the impugned proceedings u/s 145, Cr. P. C. and orders dated 3. 11. 83 and 31. 12. 83. were justified and legal and were upheld in Criminal Revision no. 8 of 1984, Pancham v. State of U. P. by Sessions Judge, Baraiya by his order dated 16-1-84 rejecting the revision. The auction of land for Rabi crop 1983-84 had already taken place on 5. 2. 84. ( 11 ) THUS the basic grounds taken to challenge the validity and propriety of the impugned proceedings and orders are that: I. Since civil and revenue litigation between the parties regarding the same property was pending (which even at present is pending at the stage of Writ Petition in the High Court) the learned Magistrate had no jurisdiction to initiate proceedings, u/s 145, Cr. P. C. and consequently attachment and appointment of- receiver of the property u/s 146 Cr. P. C. could also not be made. 2. If at all, recourse could have been taken u/s 107, Cr. P. C. to prevent breach of peace, if any. ( 12 ) ON the first point, it is submitted by Shri Keshav Sahi, learned counsel for applicant as follows: 1. Whether the dispute between the parties over land be concerning title or possession the proper forum is civil court. 2. Decision of the civil court is to prevail and criminal court has to respect and honour that decision regarding title and possession of parties over the land. 3. The policy of law is to force the litigant to civil court and it is obvious as even under section 145 Cr. P. C the order of the Magistrate is to be operative until the party concerned is evicted therefrom in due course of law i. e. the competent court (Civil court) takes seizure of the matter and passes the necessary order regarding delivery of possession or protection of property. 4. One of the directive principles enshrined in Art. 50 of the Constitution of India is to separate judiciary from executive. The underlying policy is to immunize the judiciary from any form of executive control or interference. 5. Where any statutory law confers quasi judicial function on any executive authority or criminal court it is an incursion in the jurisdiction of the civil court. This is done where necessity compels. Obviously it presents exception andt in this background the exercise of said quasi judicial powers should be exercised with much circumcision to the extent absolutely necessary; This would necessarily imply that such power is to be exercised subject to and keeping in mind, the other laws, Codes and Acts. In other words, it should be kept in mind by the executive authority or criminal court that same remedy can be given by other courts. Thus the scope of quasi-judicial powers conferred on executive authority or criminal court should be interpreted to be very much limited and narrow. 6. Such interpretation should take into account the object of the statutory provision (Act or Code) Preamble of the Act, relationship of other chapters of the Act and the language used. This interpretation should cover larger prospective and not merely involve paraphrasing of the particular section. 6. Such interpretation should take into account the object of the statutory provision (Act or Code) Preamble of the Act, relationship of other chapters of the Act and the language used. This interpretation should cover larger prospective and not merely involve paraphrasing of the particular section. (a) On the second point the learned counsel has submitted, (a) Section 107, falls in chapter VIII which is captioned security for keeping the peace and for good behaviour, and sections 145 and 146 Cr. P. C. fall in chapter X which is captioned Maintenance of public order and tranquility. (b) Although the two subjects are dealt with and placed under separate chapters yet they are inter-connected and overlapping because the paramount purpose of both is the maintenance and preservation of peace and prevention of breach of peace. (c) Section 107 is general section and covers a large field and has wider scope while section 145 is a special provision concerning smaller field and has a limited scope inasmuch as it is restricted to disputes relating to land only. (d) Section 145 (10) Cr. P. C provides that nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107. ( 13 ) THE argument is that it is a legislative reminder to the Magistrate (court) that even in disputes relating to the land giving rise to an apprehension of breach of peace although section 145 Cr. P. C. is attracted yet section 107 Cr. P. C. can be resorted to. Argument is that section 107 Cr. P. C. applies even in those cases which attract section 145 Cr. P. C. ( 14 ) EVEN if ingredients of section 145 Cr. P. C. are made out and it is technically attracted then on that basis alone it should not be resorted to especially if there is a way out by having recourse to section 107 Cr. P. C. The argument is that if purpose of maintaining peace can be achieved otherwise then initiation of proceedings u/s 145 Cr. P. C. would be nothing but an abuse of process of court. P. C. The argument is that if purpose of maintaining peace can be achieved otherwise then initiation of proceedings u/s 145 Cr. P. C. would be nothing but an abuse of process of court. ( 15 ) AS is obvious the sum and substance of all the above submissions of the learned counsel for the applicant is that where civil or revenue proceedings are pending between the parties over certain landed property then the matter should be left to those civil and revenue courts and if there be a question of breach of peace or maintenance of public order and tranquility recourse should be made to section 107 Cr. P. C. and not section 145 Cr. P. C. ( 16 ) I, however, cannot find myself in agreement with the above submissions and the various reasons and arguments enumerated above. It is true that basically disputes between the parties over land concerning title or possession fall within the jurisdiction of civil or revenue courts and their decisions in that regard have to prevail and the criminal courts have to respect and honour those decisions. Directive principles quoted above also desire separation of judicial and executive functions or judiciary from executive. But in achieving that objective sight cannot be lost altogether of certain peculiar exigencies in conferring jurisdiction over certain matters to criminal courts even though they may be connected with disputes over land (which basically fall within the jurisdiction of civil courts ). If particular exigencies necessitate divesting civil courts of part of their jurisdiction and confer the lame on criminal courts then the two jurisdictions being separate, one cannot overlap the other. Carving out of special jurisdiction in certain circumstances to achieve specific object would necessarily invoke that special jurisdiction if facts of a particular case present all the necessary ingredients for the exercise of that special jurisdiction. Obviously such special jurisdiction has to be for limited purpose for which it has been conferred. If any special procedure has also been enacted for the exercise of that special jurisdiction then it has to be strictly followed and there can be no latitude for the authority exercising that special jurisdiction to exercise it in a qualified manner. Obviously such special jurisdiction has to be for limited purpose for which it has been conferred. If any special procedure has also been enacted for the exercise of that special jurisdiction then it has to be strictly followed and there can be no latitude for the authority exercising that special jurisdiction to exercise it in a qualified manner. That special jurisdiction has to be exercised in specified manner irrespective of other Jaws, Codes and Acts which may be available to the other authority or for that matter any other court acting in exercise of other jurisdiction. ( 17 ) OBJECTS mentioned in the captions of chapters VIII and X, Cr. P. C. are security for keeping peace and for good behaviourt and maintenance of public order and tranquility. These purposes by their very nature appear to be beyond the scope of function of civil or revenue courts and necessarily call for the employ of other executive authority or even criminal courts. To achieve the above ends provision has been made in the Code of Criminal Procedure by enacting sections 107, 145 and 146 thereof. ( 18 ) SPECIAL jurisdiction has been conferred on Executive Magistrate under both sections 107 and 145 Cr. P. C. He is to act under such section under given circumstances and in a particular manner applicable under each. The purpose is also limited, i. e. prevent breach of the peace or maintenance of public tranquility. Rather a primary duty has been cast by these sections on the Executive Magistrate to see that there is no breach of peace and public tranquility is not disturbed. In Full Bench decision of this court in Ganga Bux Singh v. Sukhdin It was held with reference to section 145 Cr. P. C from the nature of the provisions it is clear that the Magistrate has been given power primarily to preserve peace. The individual rights are affected only incidentally. ( 19 ) TO the same effect is the Full Bench decision in the case of Coctano colaco v. Jay Rodrigue. The primary object is the preservation of peace and not the adjudication of title. The Magistrate is concerned with simple question of fact of possession; he is not required to enter into an elaborate discussion about the merits of claim of the parties. This function is within the exclusive province of a civil court. The primary object is the preservation of peace and not the adjudication of title. The Magistrate is concerned with simple question of fact of possession; he is not required to enter into an elaborate discussion about the merits of claim of the parties. This function is within the exclusive province of a civil court. In the context of Section 145 Cr. P. C. the words, fact of possession would mean fact of actual possession: ( 20 ) IN Daya Ram Dass v. Raja Ram and others Allahabad High Court, Lucknow (Bench) it was held: where there is no recent decision of competent court on the question of possession, the Session Judge commits an error in interfering with the findings of fact recorded by the Magistrate on the question. Even if there was a recent decision of a competent Court between the parties on the question of possession even then the magistrate is bound to decide whether on the basis of that decision it could be found which party was in possession on the date of the preliminary order or within two months before it. If the decision of the competent court on the question of possession does not cover that period then the Magistrate would he free to record his own finding on the question of possession, for not unoften it happens that before the two months period provided under subsection (4) of sectioll 145 possession of the parties may have been adjudicated by a competent court but st4ll one of the parties may refuse to abide by the decision and take the law into his own hands and interfere with the possession of the other party. When such is the situation it may be a case of a dispute likely to lead to the apprehension of breach of peace. It is the duty of Tthe Magistrate to prevent such breach of peace by taking action under section 145 of the Code. ( 21 ) SECTION 107, Cr. P. C deals with the circumstances under which a person be required to give security for keeping peace. Under this section commission of breach of the peace is alleged to arise from the side of the particular person or persons against whom information (application) is given. ( 22 ) SECTION 145 envisages prevention of breach of the public peace arising in respect of a dispute relating to immovable property. Under this section commission of breach of the peace is alleged to arise from the side of the particular person or persons against whom information (application) is given. ( 22 ) SECTION 145 envisages prevention of breach of the public peace arising in respect of a dispute relating to immovable property. Breach of peace maybe occasioned by any party to the dispute. Since the subject matter of dispute is immovable property then if the said immovable property is placed beyond the reach of the parties concerned then breach of the peace gets averted. This envisages attachment of property for which provision has been made under section 146, Cr. P. C. Sections 145 and 146 are to be read together. Proceedings u/s 146, Cr. P. C. are in continuation of those under section 145 Cr. P. C. section 146 Cr. P. C. is a sort of a proviso to section 145 Cr. P. C. ( 23 ) SECTION 107, Cr. P. C. is discretionary inasmuch as it runs, when an Executive Magistrate receives information and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause. The use of. the word may makes it discretionary. ( 24 ) SECTION 145 Cr. P. C. is mandatory inasmuch as it runs wherever an Executive Magistrate is satisfied that a dispute likely to cause a breach of the peace exists concerning any land he shall make an order in writing TI The use of the world shall makes it mandatory. ( 25 ) HOWEVER, the argument advanced by Shri Kesho Sahai, learned counsel for the applicant is that the words Tmay and shallt used above should not be given their ordinary meaning but should be interpreted int the context of things. To illustrate, it is pointed out that when ,he purpose of section 107, Cr. P. C. is to keep the peace and prevent breach of the peace, public tranquility and on the basis of information received the Executive Magistrate also forms an opinion that there is sufficient ground for proceeding then the very nature of the duty cast upon him should leave no choice with him and he is bound to proceed in the manner provided and this would make the section mandatory and the word may then has to be read as shall. ( 26 ) SIMILARLY it is argued that when the dispute between the parties over land is already pending in the civil court then the word shall used in section 145, Cr. P. C. ought to lose its mandatory aspect and should assume the discretionary aspect and then the choice should be of section 107 Cr. P. C. ( 27 ) IN this connection reference is made by the learned counsel for the applicant on the following cases: In Malkappa v. Padmanna it was held as under: The provisions of S. 145 of the Code of Criminal Procedure should not be invoked when civil litigation about the identical subject matter is already pending. It should be remembered that the very purpose of that section is to prevent the breach of public peace at the instance of the parties, who should, like law abiding citizens, place their dispute before a civil court and not take the law into their own hands. ( 28 ) EVEN the final order that is contemplated under that section is intended only as a stop-gap arrangement. The ultimate objective undoubtedly is to compel parties to place their disputes before a Civil Court and to get a proper adjudication on their rights to immovable property. When the parties have already gone to the civil court and the civil court is already seized of the matter, it seems to me that there is no longer any scope for invoking S. 145. ( 29 ) THE over-riding consideration of the maintenance of public peace has very often been pressed before courts whenever a situation like this has arisen. Some courts have taken the view that although it may not be proper for a Magistrate to act under 5. 145 of the Code of Criminal procedure, the mere pendency of civil litigation does not oust the jurisdiction of a Magistrate to proceed under S. 145. ( 30 ) IT seems to me that it is a misapprehension to consider this question from the point of view of the existence or otherwise of a jurisdiction in a Magistrate. Section 145 should not be understood as merely conferring a particular jurisdiction on a criminal court to deal with a civil matter. ( 30 ) IT seems to me that it is a misapprehension to consider this question from the point of view of the existence or otherwise of a jurisdiction in a Magistrate. Section 145 should not be understood as merely conferring a particular jurisdiction on a criminal court to deal with a civil matter. It embodies or enjoins upon the Magistrate a certain duty and that duty is to see that parties who have a civil dispute do not take the law into their own hands and commit breach of peace. ( 31 ) THE duty is to see that the parties actually go to a civil court and not fight about the land. If the parties have already gone there, the Magistrate has no longer any duty to perform. It is also necessary to state that one of the pillars of public peace is the respect for orders of the civil courts and the proceedings before Civil Court. ( 32 ) IF the Criminal courts should start parallel proceedings in respect of a matter which is pending before civil court, I have no doubt that it will have the effect of undermining respect for the authority of civil courts with the result that the very objective of S. 145 will be defeated. This is not saying that the Magistrate cannot proceed under S. 107 to bind over parties who, it is apprehended, might commit some offence or commit breach of peace. ( 33 ) INDEED that section is more proper because it is exclusively a matter for a Magistrate to deal with, whereas S. 145 impinges upon the authority of civil courts. When, there fore, there is a choice between S. 145 and 5. 107 before the Magistrate by reason of the pendency of civil litigation it seems to me perfectly obvious that he must choose. 5. 107 and not S. 145. ( 34 ) IN Shankarappa Gurappa Kirahagi v. Ramenagowda Sahebagowda Patil it was held as under: It is well established that it is the duty of the Magistrate to give effect to the decisions of the Civil courts and see, as far as possible, that the decrees of the civil courts are maintained. Otherwise, it would only amount to putting a premium upon the high handed and unlawful activities of the otherwise. Otherwise, it would only amount to putting a premium upon the high handed and unlawful activities of the otherwise. The object of section 145 of the Code of Criminal Procedure undoubtedly is to compel the parties to go to the civil court to settle their disputes and to get adjudication of their rights to immovable properties. When that is done by a competent Civil Court, on the guise that there is likelihood of breach of peace between the parties, the Magistrate ought not to exercise his powers under section 145 of the Code of Criminal Procedure. If really there is likelihood of breach of peace between two parties in such a situation as this, the proper course open to the Magistrate is to take action under section 107 of the Code of Criminal Procedure. In Tikuda v. State and others Tit was held as under: It may be observed that if a dispute about a certain immovable property is pending before a revenue or a civil court and if one of the parties to that suit moves a Magistrate to take proceeding under section 145 of Criminal Procedure Code about the same immovable property which is involved in the suit, the Magistrate should not lightly proceed in the matter. ( 35 ) HE should weigh and consider whether there is a real apprehension of the breach of peace and even if there is such an apprehension whether the same cannot be averted by proceeding under section 107, Criminal Procedure Code. For instance, in a case like that of Ragga where a suit for injunction is pending in a revenue court or if a similar case is pending in a civil court, and if a temporary injunction against one party has already been given by that court, then it is evident that the said court has already considered that party in possession of the immovable property in whose favour the injunction has been granted and if inspite of that temporary injunction the other party is bent upon dispossessing the first party and a breach of peace is imminent, then the proper course to bind down the party which is not in possession of the property, to keep peace for the requisite period. ( 36 ) THIS does not, however, mean that the jurisdiction of the Magistrate to proceed under S. 145 of the Code of Criminal Procedure Code is ousted simply because a suit about the same immovable property is already pending in revenue or civil court. What we only mean to say is, that in such cases the Magistrate must proceed with care and caution, after ascertaining full facts from the party which moves the application, under 5. 145, Criminal Procedure Code. ( 37 ) THERE may be cases where a Magistrate may not come to know even by the time he passes a preliminary order under S. 145 whether a case about the same property is pending in some other court. Section 145 of the Code of Criminal Procedure lays down that 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 breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction he should make an order in writing. (9) In Lal Chand v. Smt. Amrauti and another it was held as under: where civil litigation is pending the more appropriate course would certainly be to take proceedings under 5. 107, Cr. P. C. but where the rights of the parties had been determined by a competent court although an appeal was pending, the Magistrate had a choice between drawing up proceeding under either of the 5. 145 and 107 and if in the circumstances of the case he preferred to take action under 5. 145, Cr. P. C. and in doing so maintained the rights of the parties as determined by a competent court, - no interference in revision which would neutralise the effect of the decree of a competent court will be justified. ( 38 ) IT is argued that clear ratio of this decision is that where either civil litigation is pending or even decreed by a competent court then the choice of action between Ss. 145 and 107 Cr. P. C. should be in favour of the latter section on the ground of propriety. It is a different matter that on the fact of the above case when the Magistrate had already chosen to act u/s 145, Cr. 145 and 107 Cr. P. C. should be in favour of the latter section on the ground of propriety. It is a different matter that on the fact of the above case when the Magistrate had already chosen to act u/s 145, Cr. P. C. his action was not interfered in revision by the High Court. ( 39 ) IN MD. Mushehuddin and another v. Md. Salahuddin it was held as under: The pendency of a civil suit is no bar to the initiation of a Section 145 proceeding, but ordinarily such proceeding should be avoide9 when a civil suit is pending between the parties for determination of their rights. When there is an apprehension of breach of the peace, the Magistrate will use his discretion and see whether action under section 107 or a proceeding under section 145 would be more appropriate. ( 40 ) ON the other hand, the learned counsel for opposite party no. 1 has cited the following decisions: In Agni Kumar Dass v. Mantazaddin and another it was held as under: The words actual possession in sub S (1) of S. 145, Criminal Procedure Code, means actual physical possession even though wrongful, e. g. that of a recent trespasser in actual physical possession at the time of the proceedings under 5. 145. The word dispute in the same section means actual disagreement existing between the parties at the time of the proceedings under S. 145 even though the question as to the right to possession has already been decided by a civil court. The magistrate had jurisdiction to take action under S. 145, Criminal Procedure Code inspite of the order of the Civil Court for delivery of possession. That he was not bound. in law to find that the applicant was in possession by reason of the delivery of possession given by the Civil Court. In Kalap Din and other, v. State1 two specific points were formulated for consideration as follows: 1. whether proceedings u/s 145 Cr. P. C. can be initiated or continued when a civil suit between the same parties and relating to the same property is pending in a court of competentt jurisdiction? 2. when the rights relating to the property forming the subject matter of the proceedings u/s 145, Cr. whether proceedings u/s 145 Cr. P. C. can be initiated or continued when a civil suit between the same parties and relating to the same property is pending in a court of competentt jurisdiction? 2. when the rights relating to the property forming the subject matter of the proceedings u/s 145, Cr. P. C. have been adjudicated upon by a court of competent jurisdiction, whether the decision of that court is binding on the Magistrate and should the Magistrate drop the proceedings to give effect to that decision or he should proceed to conclude the proceedings u/s 145, Cr. P. C. in accordance with the procedure contained therein? It was held: Now once a Magistrate is satisfied that apprehension of a breach of the peace exists with regard to any immovable property within his jurisdiction he has no option but to pass an order u/sub 5. (1) of 5. 145, Cr. P. C. The Magistrate, on the language contained in 5. 145 Cr. P. C. cannot take into consideration any other circumstance like pendency of a civil suit. In other words, even if a civil suit is pending with regard to a property and the Magistrate concerned receives a report affording satisfaction that in apprehension of a breach of the peace exists over that property between two par-parties, it is his duty to take proceedings u/s 145, Cr. P. C. and the pendency of the civil suit can have no bearing on that duty which the Magistrate has to discharge under the mandatory provisions contained in 5. 145 Cr. P. C. ( 41 ) IT was argued before us that the word shall does not always carry the meaning ordinarily assigned to that word and that has to be interpreted in the context in which it is used. We have to quarrel with that proposition. The point, however, remains that in 5. 145, Cr. P. C. the word shall has been used in the context of apprehension of a breach of peace. We have, therefore, no doubt that the word shall having been used in sub 5 (1) of 5. 145 Cr. P. C. in the context of an apprehension of a breach of the peace, the provisions of S. 145 are not directory but mandatory. We have, therefore, no doubt that the word shall having been used in sub 5 (1) of 5. 145 Cr. P. C. in the context of an apprehension of a breach of the peace, the provisions of S. 145 are not directory but mandatory. In paras 13 to 19 number of earlier decisions were considered including the case of Malkapra v. Padmanna and Tikuda v. State (Full bench decision of Rajasthan High Court) In the end in para 20 it was observed; Our conclusion on point No. 1 therefore, is that if a Magistrate is satisfied that a dispute relating to immovable property giving rise to apprehension of breach of peace exists, he can take action u/s 145, Cr. P. C. even when a civil suit relating to the same property and between the same parties is pending in a court of competent jurisdiction. ( 42 ) THE ratio emerging from paras 22 and 23 of the judgment on point no. 2 is as under: The decision of the civil or revenue court, if filed before the Magistrate will not be binding on him, but shall be considered only as evidence in the case ( 43 ) IN paras 24 and 37 the following quotes from a Division Bench decision of Allahabad High Court in Mst. Hosanaki and Others v. State were made: For a Magistrate to have jurisdiction to proceed u/s 145 there must exist a dispute likely to cause a breach of the peace. He is only concerned with the existence of a dispute; he is not concerned at all with the questions how it arose, which party is on the aggressive or unreasonable, whether dispute has been decided remotely or even recently by a court of competent jurisdiction -- or whether an alternative remedy is open to the party that seeks his assistance. It was further observed: A decision of a competent court on a question of title, even if followed by delivery of possession to the successful party, is not conclusive evidence of the partys possession in inquiry u/s 145 (4); a Magistrate is not bound by any law to give his find in: in accordance with the decision regardless of the actual evidence. If the evidence satisfies him that the other party is in actual possession, he is bound by law to declare him to be in possession despite the decision of the civil court or the delivery of possession by it. The admissibility of a previous judgment is governed by the provisions of the Evidence Act, there is no provision which makes a judgment of a civil court conclusive. ( 44 ) THE above discussion clearly shows that while enacting 5. 107 and 145/146, Cr. P. C special jurisdiction has been conferred on Executive Magistrates and a special procedure has been prescribed to exercise that jurisdiction. Again jurisdiction u/s 107 and 145/146 Cr. P. C. is to be exercised under different situations to achieve different objects which may for convenience be termed as two separate shoots of the main object of maintenance and preservation of peace and prevention of breach of peace. ( 45 ) IT would not be correct to say that if ingredients of section 145, Cr. P. C. , are made out and it is technically attracted then on that basis alone it should not be resorted to especially if there is a way out to maintain peace by having recourse to section 107, Cr. P. C. The contention that in such a situation the initiation of proceedings under section 145, Cr. P. C. would amount to abuse of process of court is also neither justified nor tenable because it can well be said that when the ingredients and pre-requisites of section 145, Cr. P. C. are there then not to initiate proceedings thereunder and instead press section 107, Cr. P. C. into service would itself be an abuse of process of court. ( 46 ) IN view of the above discussion and after due consideration of the case law cited I am of the opinion that on particular facts of the present case as already detailed in the earlier part of the judgment the present application has no force. There is obviously no illegality or irregularity in the exercise of jurisdiction u/s 145/146, Cr. P. C. by the learned Magistrate. The jurisdiction exercised in initiating proceedings u/s 145/146 Cr. P. C. and thereafter passing the impugned order dated 3. 11. 83 and the subsequent impugned order dated 31. 12 83 whereby earlier order dated 11. 11. 83 u/s 146 Cr. P. C. by the learned Magistrate. The jurisdiction exercised in initiating proceedings u/s 145/146 Cr. P. C. and thereafter passing the impugned order dated 3. 11. 83 and the subsequent impugned order dated 31. 12 83 whereby earlier order dated 11. 11. 83 u/s 146 Cr. P. C. holding that there was an emergency and directing attachment of the plots in dispute and simultaneously appointing receiver of the said plots was allowed to operate, was perfectly legal. ( 47 ) NO interference is, therefore, called for under section 482, Cr. P. C. The application is hereby dismissed. Appeal dismissed .