JUDGMENT S.C. Mathur, J. 1. The petitioner Makhan Lal Raina has approached this Court to seek quashing of two orders passed by the Additional City Magistrate, I, Lucknow. Both the orders were passed on the same day, namely, 23rd April, 1988. One of the orders has been passed under section 145(1) of the Criminal Procedure Code, for short 'Code', and the other has been passed under section 146 of the same Code. The dispute in the petition pertains to a shop situate in Hazratganj market, police station Hazratganj, Lucknow, in which restaurant business was being admittedly carried in partnership between the petitioner and opposite parties 2 and 3 under the name and style of 'Sarvapriya Bhojnalaya.' 2. A few facts about which there is no dispute between the parties may immediately be stated. 3. The parties to the dispute are Smt. Satya Wati Prasad, opposite party no. 2, on the one hand and the petitioner Makhan Lal Raina and Har Saran Verma, opposite party no. 3, on the other. None of the parties claims to be the owner of the shop in dispute which vests in Lucknow Development Authority; previously it vested in the Improvement Trust, Lucknow. Smt. Prasad was the tenant of the shop in question as well of the portion at the back of the shop. On 25th March, 1958 the parties entered into partnership to run restaurant business in the shop in question. The period of partnership was fixed as thirty years. In supersession of this partnership the parties entered into another partnership on 22nd April, 1965 and the period of this partnership was fixed as twenty three years from the date of execution of the agreement. The copies of the two partnership deeds have been filed as Annexures I and 2 to the counteraffidavit of opposite party no. 4. On 1941988 opposite party no. 2 issued a notice through her Advocate Sri Raj Kumar Asthana to the petitioner and opposite party no. 3 stating therein that the period of twenty three years stipulated in the partnership deed dated 2241965 would come to end on 2141988 and the opposite party no. 2 does not want to renew the partnership and requiring the petitioner and opposite party no. 3 not to come to the shop in question from 2241988 and to refrain from interfering in her possession of the shop in question. 2 does not want to renew the partnership and requiring the petitioner and opposite party no. 3 not to come to the shop in question from 2241988 and to refrain from interfering in her possession of the shop in question. A copy of the notice is Annexure 6 to the petition and its genuineness has not been disputed by the opposite party no. 2. On 2241988 a report was lodged by opposite party no. 2 at the police station Hazratganj, Lucknow, in which she referred to the partnershipdeed and stated that she was receiving Rs. 100 per month in accordance with the partnership deed and that the period of partnership has expired and this fact was brought to the notice of the petitioner and opposite party no. 3 through notice given by Sri Asthana, Advocate, yet they paid no need to it. Then she states that in the night of 2141988 she put her lock from outside. She goes on to state that after putting the lock she made her soninlaw, K.M. Chatterji, who has become a Sadhus sleep in the verandah of the shop but in the morning the petitioner came and assaulted Sri Chatterji who was sleeping and broke his Surahi (earthen Jug) and glass. She sought protection for her life, property and for the life of her children. This report, as appears from its copy filed by opposite party no. 2 along with her counteraffidavit, was lodged at 7.30 a.m. On 2241988 itself, Police Inspector Sri G. Sahi made report under section 145 of the Code of Criminal Procedure to Additional City Magistrate, I, Lucknow, opposite party no. 1. In this report he has described opposite party no. 2 as the First Party, and opposite party no. 3 and the petitioner collectively as the Second Party. He states that the shop in question was allotted to the First Party about thirty years ago and thereafter both the parties entered into a partnership agreement for doing restaurant business in the said shop which they did under the name and style of Sarvapriya Bhojnalaya and in the partnership the Second Party was active partner while the First Party was sleeping partner. He goes on to state that at the moment locks of both the parties are there on the shop and a dispute has arisen between the parties relating to possession of the shop. He goes on to state that at the moment locks of both the parties are there on the shop and a dispute has arisen between the parties relating to possession of the shop. He refers to the pleas made before him by both the parties viz,, the first party asserting that the period of agreement has expired and she is no long of interested in running the restaurant business, and the second party pleading that they were running the business and they will continue to run it. He states that papers were called for but neither party produced any paper relating to possession. He mentions that both the parties want to take possession of the shop by removing the lock of the other on account of which an emergent situation of breach of peace has developed and either party may commit serious crime. In the end he opined that it had become necessary that proceedings be drawn and the property be attached. From the copy of the Inspector's report, Annexure 7 to the petition, it appears that a copy of the report lodged at police station by opposite party no. 2 was forwarded to the learned Magistrate. 4. On the very next day, viz., 2341988 the learned Magistrate passed two orders, one under section 145(1) and the other under section 146 of the Code. 5. In his order dated 2241988 under section 145(1) the learned Magistrate refers to the police report and states that through it, it has been brought to his notice that on account of dispute of possession, tension has developed between the parties and there is apprehension of breach of the peace from either side. Then he expresses his satisfaction in the following termsUprokt Police Akhya Se Mujhey Is Baat Ka Santosh Ho Gaya Hal Ki Ukt Bhojnalaya Ke Qabzedari Ko Lekar Shanti Bhang Honey Ki Sambhavana Utpann Ho Gayee Hai. After expressing this satisfaction he directs both tile parties to appear before him on 851988 at 10 a.m.? and file their written statements and evidence. 6. After expressing this satisfaction he directs both tile parties to appear before him on 851988 at 10 a.m.? and file their written statements and evidence. 6. In the order under section 146 he first refers to the initiation of proceedings tinder section 145 and to the passing of order under subsection (1) thereof and then refers to the emergency pointed out in the police report and thereafter States that from the police report he is satisfied that an emergent situation has arisen and in order to keep control on the commission of any serious crime and to maintain the peace it has become necessary to attach the disputed Sarvapriya Bhojnalava. After expressing this satisfaction he proceeds to direct the Inspector Incharge, police station Hazratganj, Lueknow to attach the said Bhojnalaya and put the same in the possession of some independent person. 7. Now the question for consideration is whether on the facts and circumstances of the case the two orders are justified and legal. 8. Section 145 (1) empowers the Executive Magistrate, after he has expressed satisfaction that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, to require the concerned parties to attend his Court on the specified date and time, and to put in written statement of their respective claims as respects the fact of actual possession of subject of dispute. (emphasis supplied). From this it is apparent that in proceeding under section 145 the jurisdiction of the Magistrate is confined to deciding the question of actual possession only; he is not required to decide the question of right to possession. From this it follows that where the possession of one party is admitted to the other and this admission is before the Magistrate, he will have no jurisdiction to initiate proceedings under section 145. The same consequence flows from a perusal of subsection (4) of section 145 which requires the Magistrate to decide the question of possession without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute." Under the subsection has required to determine the possession of the party at the date of the order made under subsection (1). The term date of the order has been explained in the proviso to subsection (4). The term date of the order has been explained in the proviso to subsection (4). Under this proviso the enquiry into possession is not confined to the date on which the order under section 145(1) is passed......It extends upto two months next before the date on which the report of a police officer or other information was received by the Magistrate. Consequently, if the material produced before the Magistrate shows that on facts admitted to the contending parties there is no dispute as to the party in possession from beginning upto the end of the period of two months mentioned herein, there will be nothing to be decided by the Magistrate and, therefore, he will have no jurisdiction to pass order under section 145(1). It now remains to be seen as to what the material produced before the Magistrate in the instant case showed. 9. In the case on hand the report to the police was made on 2241988. The Magistrate passed the order under section 145 (1) on 2341988. The date on which the police report was received by him is not clear from the record. It must have been received either on 2241988 or on 2341988. Acceptance of either of the two dates will have no effect on the merits of the case. It may, therefore, be assumed that the Magistrate received the report on 2341988 itself. Going backward, the period of two months will commence from 2431988 and end on 2341988. Now what state of possession the material produced before the Magistrate reveals? 10. As noticed earlier, along with his report the Police Inspector had sent copy of the report lodged by opposite party no. 2. This document itself contains her admission that at least upto 21st April, 1988 when she put her lock from outside, she was out of possession. The contents of the report have already been referred to hereinabove. To repeat, she states To Mujhey MajboorHoKar Dookan Men 2141988 Ki Raat Taley Bahar Se Dalney Padey. It is apparent from this sentence that prior to 2141988 there was no sort of actual possession of opposite party no. 2 over the shop in question. The actual possession over the shop in question, of the petitioner and opposite party no. 3, prior to this date is not in dispute. Since the lock was not put by the opposite party no. 2 over the shop in question. The actual possession over the shop in question, of the petitioner and opposite party no. 3, prior to this date is not in dispute. Since the lock was not put by the opposite party no. 2, in accordance with any decree, judgment or order of a Court of law or in pursuance of any agreement between the parties, the possession of opposite party no. 2 arising from the putting of the lock will have to be ignored. If this is ignored, petitioner and opposite party no. 3 were admittedly in actual possession on the date of the order under section 145 of the Code and were also admittedly in such possession during the entire period of two months referred to herein. Therefore, there was nothing to be decided by the learned Magistrate regarding actual possession over the shop in dispute. The fact that opposite party no. 2 was out of actual possession of the shop is established by another admission of the opposite party no. 2 contained in the same report. She has stated therein that she was receiving the fixed sum of Rs. 100, per month in accordance with partnership deed. There is no assertion by her that she was also looking after the business along with the other partners. The inference is obvious; she was not in actual possession. 11. A bare perusal of the police report also reveals the same state of possession. The Inspector states that the petitioner and opposite party no. 3 were active partners in the partnership business while opposite party no. 2 was merely a sleeping partner. By no stretch of imigination a sleeping partner can be in actual possession of the partnership property. 12. In neither of the two impugned orders there is reference to the report lodged by opposite party no. 2. The only inference that can be drawn is that he did not consider the same at all. The consideration of the police report is cursory. From admitted facts he has not drawn the inevitable inferences. It appears that he did not apply his mind to facts but only to the recommendation made by the Inspector regarding the action to be taken in the matter. His order under section 145(1), therefore, cannot be sustained. 13. The consideration of the police report is cursory. From admitted facts he has not drawn the inevitable inferences. It appears that he did not apply his mind to facts but only to the recommendation made by the Inspector regarding the action to be taken in the matter. His order under section 145(1), therefore, cannot be sustained. 13. It is true that under section 12(1)(a) of the Partnership Act, 1932 every partner has the right to take part in the conduct of the partnership business and, therefore, it is not possible for one of the partners to say that he is in exclusive and actual possession of the partnership property. But this is subject to contract to the contrary, as is apparent from the opening sentences of section 12 which reads: Subject to contract between the parties. In the present case, a contract to the contrary was there between the parties which is apparent from the various stipulations in the partnership deed dated 2431958. The first is that parties 2 and 3 will continue to pay a fixed profit of Rs. 100 a month to party no. 1. so long as the business continues and party no. 1 will have nothing to do with the profit and loss of the said business for which parties 2 and 3 will be solely responsible. In the partnership deed, opposite party no. 2 is the first, and the petitioner and opposite party no. 3, parties 3 and 2 respectively. Thus the interest of opposite party no. 2 in the partnership is confined to receiving Rs. 100 per month. She is not concerned with loss which will have to be borne by the petitioner and opposite party no, 3 alone. Clause 7 of the deed reads: The business of the Restaurant will be carried on by parties nos. 2 and 3 and they will be entitled to engage and dismiss whatever servants they like without interference of party no. 1, Clause 10 provides; That party no. 2 will make general supervision and party no. 3 will look after the work of the business. Again clause 11 reads: That party no. 3 will keep all accounts etc., properly and if need be engage an assistant. There is no clause assigning any work to opposite party no. 2. Thus, while the deed assigns work relating to the partnership business to the petitioner and opposite party no. 3 will look after the work of the business. Again clause 11 reads: That party no. 3 will keep all accounts etc., properly and if need be engage an assistant. There is no clause assigning any work to opposite party no. 2. Thus, while the deed assigns work relating to the partnership business to the petitioner and opposite party no. 3, it makes no assignment of work to opposite party no. 2. Without assignment of any work to her, she cannot be said to be in actual possession of the shop. 14. The subsequent partnership deed which was executed on 2241965 makes the matters relating to possession more specific. Clauses 3 and 5 bear reproduction. They read as follows: 3. That the First party being a lady the Second and Third parties shall be wholly and solely responsible for running and managing the business of the partnership on sound business principle and the First party shall not interfere in the same in any manner whatsoever including the management of staff and servants of the partnership, the payment of their salaries, the allowance , bonus and gratuity etc., maintenance discipline amongst them and all other acts of expenses of management, all of which will be borne by the partnership firm. 5................The position of the Second and Third parties with regard to the portion of the premises East Kotwali Shop No. 4 Hazratganj, Lucknow is used for the purposes of the partnership, shall be purely that of the licensees. Now if petitioner and opposite party no. 3 became licensees of the shop where is the question of opposite party no. 2 remaining either in actual or joint possession of the shop? In this deed also, opposite party no. 2 retained only the right to receive fixed profit of Rs. 100 per month, which under clause 14 increased by 3% if the monthly profit of the partnership exceed Rs. 5000. Reservation of right to receive higher amount in the event of increased profits will not amount to either joint or actual possession of opposite party no. 2 in view of the ether clauses of the deed, particularly clause 5 reproduced above. 15. From a perusal of the report of the Inspector it appears that a copy of the partnership deed was produced before him, yet he did not send a copy thereof to the learned Magistrate. 2 in view of the ether clauses of the deed, particularly clause 5 reproduced above. 15. From a perusal of the report of the Inspector it appears that a copy of the partnership deed was produced before him, yet he did not send a copy thereof to the learned Magistrate. It should have been apparent to the' learned Magistrate also that there was a deed of partnership between the parities and it was his duty also to require the Inspector to send a copy thereof, Unfortunately he did not call for the original deed of partnership or a copy thereof. 16 It has been held by this Court in Radha Krishna Mehra v. State of U.P. and others 1975 Criminal Law Journal 652 (DB) that every partner shall be deemed to have right to take part in the conduct of the business and ordinarily it can be assumed that every partner is in possession of the assets of the partnership firm if there be no contract between the parties that one of them shall manage the business of the firm. In this case the Magistrate had dropped the proceedings under section 145 on the ground that dispute related to partnership property. The order of the Magistrate was upheld by this Court. Therefore, even if it be held that opposite party no. 2 was in joint possession of the property in dispute, proceeding under section 145 will not be maintainable. 17. In view of the above, order under section 145(1) will remain invalid whether it is held that petitioner and opposite party no. 3 alone were in actual possession of the shop in question or whether it be held that opposite party No. 2 was also in possession along with them. 18. The teamed counsel for opposite party no, 9 cited: (1) AIR 1967 All 164 , Bhagwat Saran v. State of U.P. and others (2) 1985 ALJ 393, Abdul Aziz v. State of U.P. and others; and (3) 1987 Criminal Law Journal 1366, Sachchida Nand Misra and others v. State of U.P. and others. for submitting that the purpose of proceeding under section 145 is to prevent apprehension of breach of peace and to maintain public order and tranquility and, therefore, resort to the said section can be had even in cases of cotenancy and joint possession. for submitting that the purpose of proceeding under section 145 is to prevent apprehension of breach of peace and to maintain public order and tranquility and, therefore, resort to the said section can be had even in cases of cotenancy and joint possession. According to him, partners have to be deemed to be in joint possession of partnership property and, therefore, each partner will have to be treated as being in actual possession within the meaning of section 145 (1). These authorities were cited in reply to the case of Radha Krishna Mehra (supra) cited by the learned counsel for the petitioner. None of these authorities lays down that an order under section 145 would be valid where there is apprehension of breach of peace even though the material produced before the Magistrate clearly shows that on admitted facts one of the parties to the dispute alone has been in actual possession of the subject of dispute, to the exclusion of others, right from the beginning of the period of two months referred to hereinabove and till the date the matter comes up before the Magistrate, simply because the parties to the dispute are partners. 19. That the purpose of section 145 proceedings is to decide the question of actual possession as opposed to right to possess, is clear even from the observations made in paragraph 20 of the report in Bhagwat Saran's case which are to the effect : That enquiry has to proceed until the Magistrate arrives at a finding whether one of the parties is in exclusive possession or both are in joint possession. In the former case he has to issue an order under subsection (6) declaring such party to be entitled to possess until evicted in due course of law and forbidding all disturbances of possession. The learned counsel for opposite party no. 2 relies upon these observations for submitting that the enquiry must go on till a finding is recorded on the question of possession. The extracted observation is an extract from the judgment of the Mysore High Court in Hanumappa v. Koudappa (AIR 1964 Mysore 195). The learned counsel for opposite party no. 2 relies upon these observations for submitting that the enquiry must go on till a finding is recorded on the question of possession. The extracted observation is an extract from the judgment of the Mysore High Court in Hanumappa v. Koudappa (AIR 1964 Mysore 195). The extracted portion is preceded by the observations: There is a consensus of opinion that the mere putting forward of a case of joint possession by one party while the other party claims exclusive possession does not take the matter out of the purview of section 145 Cr.P.C. There can hardly be any doubt about the correctness of this view since as long as there is a dispute relating to a land which is likely to cause a breach of the peace and the possibility of one of the parties to be in actual possession, the requirements of section 145 are satisfied, otherwise all that one of the parties need do is to plead joint possession. This would defeat the object of section 145 as a preventive measure against breach of peace. All that these observations convey is that by the mere pleading of joint possession the proceedings under section 145 cannot be nullified. If there is a dispute regarding actual possession of land, the proceedings must be proceeded with. I am in respectful agreement with these observations. But there must be a real dispute of actual possession and then proceedings under section 145 can be initiated or proceeded with. The proceedings cannot be initiated so as to oust a party from actual possession and whose actual possession is established even from the facts stated in the report to the police and in the report of the Police Inspector to the Magistrate. This authority is, therefore of no assistance to opposite party no. 2. 20. Bhagwat Saran's case was indeed a case in which the contending parties were partners but the dispute of possession did not arise from the relationship as partners but arose from an order of the Civil Court whereunder one of the erstwhile partners had been put in exclusive possession of the disputed property. There is nothing in this judgment which militates against the view expressed in Radha Krishna Mehra's case (supra). 21. Abdul Aziz and Sachchidanand Misra (supra) were not cases of dispute relating to partnership property. There is nothing in this judgment which militates against the view expressed in Radha Krishna Mehra's case (supra). 21. Abdul Aziz and Sachchidanand Misra (supra) were not cases of dispute relating to partnership property. They are, therefore, of no assistance to the opposite party no. 2. 22. In Sachchidanand Misra's case (supra) it has of course been observed that there is nothing in the language of section 145 to warrant the conclusion that proceedings under that provision cannot be taken in respect of land held by cotenants. It has also been observed in this judgment that the provisions under Chapter X of Criminal Procedure Code, including section 145 are with a view to maintain public order and tranquility and the paramount consideration is to maintain public order and tranquility. Indeed, this is the purpose of section 145 but this purpose cannot be utilised to oust a person admittedly in possession, as has been done in the case on hand. There are other provisions in the code for achieving the same object or purpose, like sections 107 and 117. If a person who is out of possession of a land attempts to take forcibly possession of the said land causing apprehension of breach of peace, he may be dealt with under sections 107 and 117 of the Code but there will be no justification to take recourse to section 145 simply because the root cause of threat to public order and tranquility is land and that too in a manner which ousts the person in possession of the land resulting in closure of running business. The course adopted by the learned Magistrate has resulted in premium being put on high handedness. It will be travesty of justice if courts decline assistance to a person observing the law, lending its weight in favour of the party acting in a high handed manner and who takes the law in his own hands. 23. In view of the above I am of the opinion that the cause of opposite party no. 2 is not advanced by reference to the aforesaid authorities. 24. It was also the argument of the learned counsel for the petitioner and opposite party no. 23. In view of the above I am of the opinion that the cause of opposite party no. 2 is not advanced by reference to the aforesaid authorities. 24. It was also the argument of the learned counsel for the petitioner and opposite party no. 3 that a civil suit filed by the petitioner relating to possession of the property in dispute was pending in the Civil Court and, therefore, parallel proceedings under section 145 Cr.P.C. were not maintainable, Learned counsel on both the sides cited authorities for and against the proposition. Since I am not invalidating the proceedings under section 145 on the ground of pendency of the civil suit, it is not necessary to mention the authorities cited at the Bar, The authorities cited may only be mentioned. For the petitioner the authority cited is AIR 1985 Supreme Court 472 Ram Sumer Purl Mahant v. State of U.P. and others and the authority cited for opposite party no. 2 is 1987 Criminal Law Journal 1198 (Punjab and Haryana) Jagdish v. S.D.M., Panipat. 25. Having settled the controversy relating to the validity of the order passed under section 145 (1) of the Code I may now pass on to the order passed under section 146 of the Cods. The jurisdiction to pass order under section 146 arises only after the passing of an order under subsection (1) of section 145. If the order under section 145(1) is invalid, obviously the order under section 146 cannot be sustained. Accordingly, the order under section 146 will also have to be quashed. However, it needs be mentioned that this order was also passed by the learned Magistrate in a very casual manner. He does not appear to have applied his mind to subsection (2) of the section which provides that when the Magistrate attaches the subject of dispute, he may make such arrangements as to he considers proper for looking after the property or if he thinks fit appoint a receiver thereof, who shall have, subject to the control of the Magistrate all the powers as a receiver appointed under the Code of Civil Procedure, 1908. The learned Magistrate merely directed the Police Inspector to attach the property and place it in the custody of an independent person. He did not realise that in the property in dispute, namely, the shop, a restaurant business was being carried on. The learned Magistrate merely directed the Police Inspector to attach the property and place it in the custody of an independent person. He did not realise that in the property in dispute, namely, the shop, a restaurant business was being carried on. When attachment was made in respect of running business, it was desirable that some arrangement be made whereby the business may not be stopped. The consequence of the implementation of the order of the learned Magistrate has been that running business has been stopped and locks have been put on the shop in question. A similar order was not approved of by this Court in G.D. Mukarji v. Shyam Lal Tewari and others (1978 All LJ 1331). In this case the City Magistrate had directed the police Inspector to execute the order on the spot and to give the attached property in the Supurdgi of an independent person, as has been done in the case on hand. Commenting upon this order this Court observed in paragraph 7 thus: In doing so, the City Magistrate has shirked his legal duty to make suitable arrangement of the property in dispute. In fact he has abdicated his powers to the Inspector Incharge, P.S. Daraganj which is wholly uncalled for, irregular and illegal. The City Magistrate concerned, should have himself passed suitable orders for making adequate arrangements with regard to the disputed property. 26. In view of the above, both the impugned orders passed by the learned Magistrate will have to be quashed. The writ petition is, accordingly allowed and the impugned orders dated 23rd April, 1988, contained in Annexures 8 and 9 passed by the Additional City Magistrate I, Lucknow, are hereby quashed. In case apprehension of breach of peace still exists, it will be open to the learned Magistrate to take action under other provisions of the Code indicated hereinabove or under any other law applicable to the facts. There shall be no order as to costs. (Petition allowed)