AMAL KANTI BHATTACHARJI, J. ( 1 ) IN this criminal revision the validity of a proceeding Under Section 145 Cr. P. C. pending before an Executive Magistrate has been challenged. The relevant proceeding was initiated on the basis of the following facts :- ( 2 ) THE property in dispute appertains to premises No. 291 Netaji Subhas Road, Asansol and consists of a big hall, about 6500 square feet in area owned by the petitioner No. 1. The said hall is utilised for various types of business by the petitioners including a partnership business with the firm name Singhania Soap Factory. For facilitating the carrying on of different business the hall has been divided into three compartments with partition walls. The aforesaid partnership business of the Singh ania Soap Factory has, however, come to a standstill since 1987 owing to disputes among the partners, ( 3 ) THE parties excepting O. P. No. 1 (i. e. the State) are closely related. On 18. 07. 88 O. P. No. 2 filed a petition Under Sections 447/107/116 (3) Cr. P. C. against the petitioners and others alleging that the opposite parties mentioned therein were trying to take exclusive possession of the Soap Factory by taking law in their own hands and were thereby threatening peace The Magistrate concerned before whom the petitioners filed the petition asked the police to make an enquiry into the matter and directed the maintenance of status quo in the meantime. The police however, locked the entrance door by putting padlocks thereon and prevented the use of the disputed room by any of the parties. The present petitioners thereafter appeared before the Magistrate and placed their case before him. But the Magistrate after hearing the parties converted the proceeding Under Section 144 into one Under Section 145 Cr. P. C. and then attached the property Under Section 146. It has been alleged that since then the matter is being dragged unnecessarily and the petitioners have been unduly deprived of the enjoyment of the property. They, therefore, pray for the quashing of the proceeding which has been started Under Section 145 Cr. P. C. ( 4 ) MR. Pradip Ghosh appearing for the petitioners strongly urges that the procedure adopted by the Magistrate has been quite erroneous. They, therefore, pray for the quashing of the proceeding which has been started Under Section 145 Cr. P. C. ( 4 ) MR. Pradip Ghosh appearing for the petitioners strongly urges that the procedure adopted by the Magistrate has been quite erroneous. According to him the disputed property admittedly belongs to a partnership firm and as such all the partners have right to possess the same until the partner ship is dissolved. He also argues that the conversion of the proceeding Under Section 144 to one Under Section 145 has been illegal in this case as the scope of the two sections is different and having regard to the right of possession claimed by the parties in this case there were no ingredients for starting a proceeding Under Section 145. ( 5 ) MR. Milan Mukherjee appearing for the opposite parties supports the action taken by the Magistrate and submits that the propriety of the continuance of the proceeding Under Section 145 has already been tested in a writ petition filed by the petitioners and the learned Judge in the writ proceeding did not find the 145 proceeding to be irregular. ( 6 ) THE main contention of Mr. Ghosh is that the dispute between the parties does not attract the provisions of Section 145 Cr. P. C. and that it is actually not a dispute concerning land or water within the meaning of the said section. The partnership in respect of the Soap Factory is admitted by both the parties. It is also admitted that the business of the Factory has been stopped for a few years. It was alleged in the petition filed by the opposite parties Under Section 144 that they were being threatened to be dispossessed by the present petitioners and there was serious apprehension of breach of peace. Mr. Ghosh's contention is that possession of partners is the possession of the agents of the firm and that there arises no question of any of the partner's claiming any exclusive right of possession in preference to others. Mr. Ghosh cites several decisions in support of his argument that the dispute of possession among the partners cannot be the subject-matter of a proceeding Under Section 145 Cr. P. C. ( 7 ) MR. Mr. Ghosh cites several decisions in support of his argument that the dispute of possession among the partners cannot be the subject-matter of a proceeding Under Section 145 Cr. P. C. ( 7 ) MR. Ghosh cites a number of decisions in support of his argument that a property belong to a partnership firm cannot be possessed by some of the partners to the exclusion of others. In (Bhuban Mohan Das v. Surendra Mohan Das) a Full Bench of the Calcutta High Court held that a partner cannot be charged Under Section 406 I. P. C. for a criminal breach of trust in respect of partnership property by another partner. It was held by a detailed discussion of different English Case laws that the partner who retains certain of the partnership assets cannot be said to have acted in a fiduciary capacity. Such assets are held by a partner on behalf of the partnership in the ordinary course of partnership dealings and that having regard to the nature, character and the incidents of a partnership property there could not be a dominion over such property held by a partner. It was also held by the Full Bench that when, however, by special agreement between the parties entrustment of the property or dominion over it is given to a particular partner, the question of breach of trust could arise if the said partner misappropriated the money in breach of the agreement. The same principle was followed by the Superme Court in the case of Valji Raghabji Patel v. The State of Maharashtra. ( 8 ) THE next case cited is Kinu Mandol v. Haji Baul Mandol (23 CWN 1051) in which a Division Bench of this Court following the principle laid down in the case of Tarujan Bibi v. Asamuddi Bepari (4 CWN 426) held that where in a case of disputed possession it was found that the second party was in possession of the disputed land on behalf of the first party as well as on behalf of himself, both the parties being the members of the same family, the Magistrate's declaration Under Section 145 Cr. P. C. that the second party was to remain in possession was without jurisdiction. ( 9 ) MR. Ghosh also cites another decision reported, in 1969 Cr. P. C. that the second party was to remain in possession was without jurisdiction. ( 9 ) MR. Ghosh also cites another decision reported, in 1969 Cr. LJ 644 (K. Janardan Reddy v. Sixth City Magistrate, Criminal Court, Hyderabad) wherein it was held by the Andhra Pradesh High Court that where the property in dispute is a joint family property proceedings Under Section 145 Cr. P. C. cannot be initiated on the ground that one member of the family is in actual and exclusive possession of the part of the family property which may give rise to a dispute likely to cause breach of the peace. The principle followed was that unless there was a partition in the family any member who is in possession of any part of the joint family property can only be in possession on behalf of the other family members. ( 10 ) MR. Milan Mukheijee, however, relies on two old judgements of this Court reported in 20 CWN 518 (Baij Nath Marwari and Anr. v. W. S. Street and Ors.) and 17 CWN 944 (Basanta Kumari Dasi v. Mahesh Chandra Saha) in which the principle that Section 145 proceeding is not applicable to a dispute over possession of a joint family property has not been accepted. In 20 CWN 519 it was a dispute over the exclusive possession claimed by one co-sharer on the basis of a partition which was denied by the other party. The court held that the question of joint title to the disputed property could not be decided by the Magistrate and that the Magistrate in such a case was primarily concerned with actual possession only with title in so far as it affords presumption of possession. In 17 CWN 744 the parties were members of the same family residing in the ejmali family dwelling house each occupying a specific portion of the house. The Court differing from an earlier view expressed in 11 CWN 512 (Makhanlal Ray v. Baroda Kanta Roy) held that if the question raised was if the parties have a joint title to a particular property the same could not be decided by the Magistrate exercising jurisdiction Under Section 145 Cr. The Court differing from an earlier view expressed in 11 CWN 512 (Makhanlal Ray v. Baroda Kanta Roy) held that if the question raised was if the parties have a joint title to a particular property the same could not be decided by the Magistrate exercising jurisdiction Under Section 145 Cr. P. C. but if the co-sharers in an ejmali estate have separate possession either by express or tacit arrangement, the Magistrate is entitled to examine who is in actual possession in the undivided property in a proceeding Under Section 145. ( 11 ) WHAT is the ratio in all the above decisions ? While one view is that if there is a dispute over the joint title in respect of the particular property the same cannot be decided by a Magistrate, but otherwise a disputed possession over an admittedly joint property can. be looked into by him in a proceeding Under Section 145. The other view is that any kind of dispute of possession over a joint property is outside the purview of a proceeding Under Section 145. ( 12 ) IN this connection the Full Bench decision of this Court in Agni Kumar Das v. Mantazaddin (32 CWN 1113) may also be seen. In this case on a Full Bench reference the Court held that (a) The words 'actual possession' in Sub-section (1) of Section 145 Cr. P. C. mean actual physical possession even though wrongful, e. g. that of a recent trespasser in actual physical possession at the time of proceedings Under Section 145, and (b) the word 'dispute' in the same Sub-section means actual disagreement existing between the parties at the time of proceeding Under Section 145 even though the question as to the right to possession has already been decided by the Civil Court. ( 13 ) THIS leads us through the plain proposition of Section 145 that actual possession without reference to the merits or the claim of any of the parties to a right to possess the subject of dispute is the concern of the Magistrate. Such possession may be legal or illegal and may be subsequent to the delivery of the possession to one of the disputing parties on the basis of a Civil Court decree, the main object being the preventing of breach of the peace. Such possession may be legal or illegal and may be subsequent to the delivery of the possession to one of the disputing parties on the basis of a Civil Court decree, the main object being the preventing of breach of the peace. The magisterial action under the section cannot be supported if a breach of the peace is not prevented. Thus if the parties are entitled to joint possession a decision of possession does not solve the problem. But the section is applicable when an actual separate possession is claimed in an undivided joint property. ( 14 ) IN the above background we may analyse the instant dispute between the litigating parties. Admittedly the relevant Soap Factory was being run by the partners before the stopping of the business of the firm. There is no assertion from any of the parties that the partnership has been dissolved and any account of the assets of the firm has been taken. Until then the assets of the firm belong to the partners constituting the firm and the possession of the same by any of the partners is actually the possession for self and the other partners as well. Any attempt to give possession of the partnership property to any of the partners would ultimately be a case of joint possession unless of course by any special contract the right to possess the property by a particular partner is agreed to. Evidently when the parties are entitled to joint possession, Section 145 would not apply. ( 15 ) THE two cases relating to partnership cited above are, however, criminal cases involving allegations of criminal breach of trust. The Courts have held that a charge of criminal misappropriation does not ordinarily stand against a partner. In respect of possession of a partnership property each partner being an agent of the others his claim of separate possession cannot be equated with the separate possession of a co-sharer in an undivided joint property. While in an undivided property separate possession by mutual understanding is a question of fact, the possession of a partner in a partnership property is regulated by the incidents of the partnership law, subject, however, to any special contract among the partners. In the absence of any such contract no person can claim any exclusive right of possession in such property to the exclusion of others. In the absence of any such contract no person can claim any exclusive right of possession in such property to the exclusion of others. A Magistrate is required to take action Under Section 145 Cr. P. C. when he is satisfied from a police report or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water. Although such a dispute invariably arises out of a better claim of title over a disputed property, the Magistrate is not empowered to determine the claim of title. What he is expected to decide is the claim of actual possession. As held in the Full Bench decision in Agni Kumar's case such claim of possession may be without support of any legal title. Seemingly the purport of the section is not to allow any party to take law in his own hand to take possession of any land or water and thereby commit a breach of the peace. Section 144 may also be resorted to in such a case for immediate prevention or speedy remedy. In emergent cases an ex parte order may also be promulgated Under Section 144. Section 145 on the other hand is an ordinary measure of precaution when the breach of the peace is 'likely. ' ( 16 ) IN fact the opposite parties to this criminal revision initiated a proceeding praying for action Under Section 144/107 Cr. P. C. The Magistrate asked for a police report and ordered for the maintenance of the status quo in the meantime. On appearance of the second party he heard them and started a proceeding Under Section 145 Cr. P. C. ( 17 ) MR. Ghosh argues that drawing up of a proceeding Under Section 145 in this case was illegal as two months had elapsed after the order Under Section 144 and the Magistrate became functus officio. There is, however, no bar to the starting of a proceeding Under Section 145 during the continuance of a proceeding Under Section 144 or even after the operation of an order under the said section came to an end. There is, however, no bar to the starting of a proceeding Under Section 145 during the continuance of a proceeding Under Section 144 or even after the operation of an order under the said section came to an end. If the 144 proceeding is in progress and the Magistrate thinks on a consideration of the documents placed by the parties before him that it was actually a dispute over land or water as referred to in Section 145, it would be perfectly legal for him to convert the proceeding to one Under Section 145. But there may not also be any legal bar to start a proceeding Under Section 145 after the expiry of an order Under Section 144 if the circumstance justifying the starting of the proceeding Under Section 145 are in existence. Under Section 145 if a Magistrate is satisfied from "a report of the police officer" or "upon other information" that a dispute actually to cause breach of the peace exists concerning any land and water he can take action under the said section. If these ingredients are there, the earlier filing and disposal of a 144 proceeding does not bar the starting of a 145 proceeding. Apprehension of breach of peace should, however, be the relevant decisive factor in such a case and if there is no such apprehension the starting of a proceeding Under Section 145 would be illegal. ( 18 ) THE above detailed analysis of the legal provisions gives rise to the following propositions- (a) A proceeding Under Section 145 may have the same origin, namely, a dispute between the parties over same land or water. (b) The dispute must give rise to an apprehension that breach of the peace may occur. (c) If a speedy prevention is necessary, Section 144 may be resorted to, on the other hand, if the dispute admits of an investigation in the face of an apprehended breach of peace 145 proceeding may be started. (d) In a proceeding Under Section 145 actual physical possession is the main point of determination by the Magistrate and the question of title is relevant only so far as it affords to determine the actual possession, (e) If the parties are entitled to joint possession to the disputed property 145 proceedings cannot be resorted to. (d) In a proceeding Under Section 145 actual physical possession is the main point of determination by the Magistrate and the question of title is relevant only so far as it affords to determine the actual possession, (e) If the parties are entitled to joint possession to the disputed property 145 proceedings cannot be resorted to. (f) Even if there be common ownership of the disputed land between the disputing parties separate and exclusive possession in existence from before the dispute should be protected. ( 19 ) WITH the help of the above propositions we may try to understand the dispute projected here. Undoubtedly it was a partnership property which was being owned by the partners. Under the law the partners have right to enjoy the partnership property and as such the right to possess the same also. The Magistrate cannot ascertain the possession in favour of one or the other party even if there was an actual possession by any particular party in view of the relationship of the partners inter se. Any partner claiming a right of possession in the partnership property will have to prove that such a right was approved on the basis of any agreement among the partners. In the absence of any such agreement no person can claim any exclusive possession of any of the assets of the partnership firm including any building belonging to the firm to the exclusion of the other partners. There is no doubt that in an earlier writ case the Learned Judge had held that the action taken by the Magistrate to prevent the breach of peace in this case was correct. The Judge therein held that the dispute among the parties was a proper subject-matter to be decided by a Civil Court and that until an appropriate suit was filed before the Civil Court both the parties should be restrained as per the order passed by the Magistrate. It appears that the Magistrate in this case attached the property Under Section 146 Cr. P. C. and appointed a receiver of the same. It appears that the Magistrate in this case attached the property Under Section 146 Cr. P. C. and appointed a receiver of the same. Of course if a proceeding Under Section 145 be legal an order for attachment of the disputed property Under Section 146 can be made by the Magistrate, but such order can be only under the following circumstances.- (a) At any time after making the order Under Section 145 (1), the Magistrate considers the case to be one of emergency, or (b) if he decides that none of the parties was then in possession or if he is unable to satisfy himself as to which of them was then in possession. In. this case the Magistrate held that there was an immediate likelihood of breach of peace so he passed the order of attachment taking it to be a case of emergency. Such an order of attachment would continue till the apprehension of peace subsides. If the Magistrate thinks that there is no more likelihood of any breach of peace he can free the property from attachment. On a consideration of the entire facts presented by the parties before me and in the light of the legal provisions analysed above I think the criminal revision petition Should be disposed of in the following way. ( 20 ) THE matter is referred back to the Magistrate with the direction to see if there was any right to exclusive possession by the first party in the proceedings Under Section 145 before him on the basis of any agreement among the partners. If he finds that there was no such agreement and that the partners were entitled to joint possession to the property, he shall dispose of the 145 proceedings without any ascertainment of possession in favour of any particular party but with proper arrangement to deal with the circumstances under any other appropriate provisions of the Criminal Procedure Code. If, however, he finds that there is no apprehension of breach of peace at this stage he will stop the proceeding Under Section 145 and will lift the order of attachment forthwith. The parties are directed to have the partner ship dissolved and relevant accounts taken as early as possible or to seek any other remedy available from a competent Court. The parties are directed to have the partner ship dissolved and relevant accounts taken as early as possible or to seek any other remedy available from a competent Court. The Magistrate is directed to dispose of the proceedings within one month from the date of receipt of this order. The interim order of stay passed in this revision case is vacated.