S. K. PHAUJDAR, J. ( 1 ) THE present application under S. 482, Cr. P. C. was filed on 22-7-1998 for quashing the proceedings initiated at the instance of the opposite party under S. 145, Cr. P. C. now pending in the Court of Sub-Divisional Magistrate, Nainital, as also for quashing an order under S. 146 (1), Cr. P. C. directing attachment of the property in question and dispossession to thepresent applicants from the premises. There was a further prayer that the proceedings in question in case No. 11/24 of 1998 be stayed during the pendency of the present proceedings. ( 2 ) WHEN the matter came up as a fresh one on 23-7-1998 appearance was made for the opposite parties by Sri R. K. Sinha. The learned counsel for the applicants S/sri Dinesh Dwivedi and S. D. Kautilya and Sri R. K. Sinha, learned counsel for the opposite parties, were heard and the matter was directed to be listed on 18-8-1998. There had been an interim order, the order of attachment under S. 146, Cr. P. C. was stayed. ( 3 ) SUBSEQUENTLY, on 4-8-1998 another petition was moved with a prayer for calling for the records of Criminal Revision No. 93 of 1998 and the aforesaid Criminal Case No. 11/24 of 1998 and to quash the judgment of the Sessions Judge, Nainital, whereby the above mentioned revision application filed by the present applicant was dismissed. Further prayer was made to quash the S. 145, Cr. P. C. proceedings itself. Copy of this application was served on Sri Sinha and the matter was directed to be put up on 6-8-1998. ( 4 ) ON this date counter-affidavit was filed not only against the original application under S. 482, Cr. P. C. but also against the petition dated 4-8-1998 a prayer for vacation of the stay order was also made. The applicants came up with a prayer for modification of the stay order dated 23-7-1998 requiring stay of the proceedings before the Court below and for a direction not to release the disputed property in favour of the opposite parties. This prayer was also made with a counter-affidavit and the learned counsel were heard. ( 5 ) THE impugned proceedings under S. 145, Cr. This prayer was also made with a counter-affidavit and the learned counsel were heard. ( 5 ) THE impugned proceedings under S. 145, Cr. P. C. were initiated on the application of the present opposite party and the complainants asserted before the Courts below that they had purchased about 4000 square yards of land in the well known Cliffton Oaks Estate, Ayarpatta, Nainital, for valuable consideration, from its owner through a registered sale deed. The present applicants (shown as opposite parties in the Court below) had entered into agreement for purchase of 50 per cent of the said land on a consideration of nine and half lacs. The transaction did not mature for failure of payment on consideration. The present applicants thereafter moved the Delhi High Court for making a reference of the dispute to an arbitrator. The petition was contested by the complainant. During the pendency of the proceedings before the Delhi High Court a prayer was made under S. 41 of Arbitration Act for a restraint order against the complainant from demolishing or dismantling any existing structure, from raising any construction of cottages and from entering into any agreement for the disposal of any construction or any non-constructive area by any means of alienating. There had been an interim order by the Delhi High Court restraining the complainants from entering into any agreement for disposal of the cottages or any construction on the suit property. This interim order was passed in 1994 and the matter is still subjudice before the Delhi High Court. ( 6 ) THE complainants claim that they continued to carry out construction on the property and had let out two cottages on temporary lease to a certain company. Knowing that the cottages have been completed, the present applicants moved the Delhi High Court and sought an injunction that the complainants should not let out or part with the possession of the property in favour of any other person. ( 7 ) IT was further alleged that on 4-6-98 the present applicants Neelam Singh accompanied by her husband Ashok Singh, with some local musclemen, trespassed into the said property, assaulted the employees of the complainants and tried to occupy a portion of the cottages, after intimidating the occupants therein. An FIR was lodged and a prayer was made for taking up a proceeding under S. 145, Cr. An FIR was lodged and a prayer was made for taking up a proceeding under S. 145, Cr. P. C. to resolve the dispute regarding possession as there had been an apprehension of breach of peace over the matter. ( 8 ) UPON this application the Sub-Divisional Magistrate, Nainital, drew up the instant proceedings in question and issued notice on 17-6-98 asking the parties to appear before him on 22-6-98 to file their written statements. By a subsequent order dated 16-7-1998 the Sub-Divisional Magistrate, Nainital, had issued the attachment order under S. 146 (1) Cr. P. C. which was stayed by an interim order of this Court dated 23-7-98. ( 9 ) AGAINST the order of the S. D. M. Nainital, taking up the proceedings under S. 145, Cr. P. C. ,a revision application was preferred before the Sessions Judge, Nainital, in Criminal Revisional No. 93 of 1998 by the present applicants. It was urged that the preliminary order was bad in law as the property was a joint one and the criminal Court could not have exercised jurisdiction over it. It was further urged that an injunction order from a Civil Court in operation and as such the criminal Courts could not have recorded any attachment order nor could there be any proceedings under S. 145, Cr. P. C. for determination of possession of either of the parties. Case laws were cited before the learned Sessions Judge and after a discussion of the points raised before him it was held that a preliminary order under S. 145, Cr. P. C. was not open to revision and a subsequent institution of a civil suit and a status-quo order therein would not oust the jurisdiction of the Magistrate to continue with the proceedings. ( 10 ) IN their application before this Court the present applicants urged that in terms of the agreement dated 9-9-93 the parties were to develop the suit property and were to invest funds in equal shares and there had been a payment of rupees six lacs by the present applicants to the present opposite parties. It was stated in the instant application that the present opposite parties have made unauthorised construction and asked the applicants to contribute funds for such construction which the applicants resisted. It was stated in the instant application that the present opposite parties have made unauthorised construction and asked the applicants to contribute funds for such construction which the applicants resisted. It was further stated that the present opposite parties were dismantling the existing cottages and that too was objected to by the present applicants. Only thereafter the prayer for appointment of an arbitrator was made before the Delhi High Court and the language of interim order reads as follows :"defendant i. e. Apar Real Estates Pvt. Ltd. are restrained from entering into any agreement or agreements for disposal of the cottages or doing any construction on the said land. " ( 11 ) IT is the further case of the present applicants that the opposite parties had also instituted a civil suit against the applicants in Nainital on false allegations and had simultaneously made the present application for action under S. 145, Cr. P. C. It was stated that in Civil Suit No. 75 of 1998, after hearing the parties, the civil court had directed on 25-6-98 that the parties are to maintain status quo during the pendency of the civil suit. ( 12 ) IN their several affidavits the present opposite parties indicated that there was concealment of real facts, by the present applicants and there had been an attempt to misrepresent the facts before the High Court by the present applicants. The applicants were never in possession of any part of the property till 4-6-98. There had been no agreement for joint development of property in question. The orders of the S. D. M. , Nainital, were perfectly legal and there was no bar for the criminal Court to initiate a proceeding under S. 145, Cr. P. C. as a Civil Court had issued a direction of maintenance of status-quo only and that too on a date subsequent to the initiation of the proceedings under S. 145, Cr. P. C. There had been no determination of possession by the Civil Court by the mere status-quo order. ( 13 ) THE learned counsel for the opposite party No. 2 took me through several decisions which, they thought were relevant to the present issue. P. C. There had been no determination of possession by the Civil Court by the mere status-quo order. ( 13 ) THE learned counsel for the opposite party No. 2 took me through several decisions which, they thought were relevant to the present issue. In the case as reported in (1995) 32 All Cri C 336 an Honble Judge of this High Court had held that when a civil suit in respect of the property is pending and there is an order for maintaining status quo but no clear cut prima facie findings of the civil Court was there about possession of the disputed plot, the Magistrate had every jurisdiction to take up a proceeding under S. 145, Cr. P. C. and in this respect the Honble Judge has relied on a decision of the Supreme Court as reported in AIR 1994 SC 1436 , where in it was held (as quoted by Honble single Judge) that where the dispute is on the question of possession the Magistrate is empowered to take cognizance under S. 145, Cr. P. C. Reliance was also placed on another decision of the Honble single Judge of the Allahabad High Court as reported in 1997 ACC (Cri) 109 His lordship had explained in this case that there had been no doubt an order of status quo, but both the parties could claim that his possession was directed to be maintained. Thus to maintain law and order and to prevent parties from taking law in their own hands which might create breach of peace, the Magistrate had every jurisdiction to initiate a proceeding under S. 145, Cr. P. C. In another decision the Allahabad High Court held (1994) 21 All Cri C 172 : (1984 Cri LJ NOC 94) that the Magistrate had an independentjurisdiction to proceed under S. 145, Cr. P. C. irrespective of a finding of civil or revenue Court although such findings would be evidence in the matter. ( 14 ) RELIANCE was also placed on a decision of the Supreme Court as reported AIR 1980 SC 242 . In this case, however, the Court had simply ruled that mere attachment made under S. 146, Cr. P. C. would not divest the Magistrate to decide the question of possession. ( 14 ) RELIANCE was also placed on a decision of the Supreme Court as reported AIR 1980 SC 242 . In this case, however, the Court had simply ruled that mere attachment made under S. 146, Cr. P. C. would not divest the Magistrate to decide the question of possession. Another decision of the Supreme Court as reported in AIR 1994 SC 1436 was relied on wherein the apex Court had ruled that the proceedings under S. 145, Cr. P. C. need not necessarily be dropped on the ground that proceedings under S. 107, Cr. P. C. were dropped nor on the ground of pendency of a civil suit for injunction when the suit was not based on title but raised questions only of dispossession of a co-owner by another. ( 15 ) IT is necessary to refer to the provisions of S. 145, Cr. P. C. It comes in Chapter X covering maintenance of public order and tranquility and in part D thereof, the disputes as to immovable property are covered. Section 145, Cr. P. C. comes in this part D. It says that whenever an Executive Magistrate is satisfied from a report of a police officer or from other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. Further provisions under this section require the Magistrate to decide whether any and which of the parties was, at the date of the preliminary order in possession of the subject of dispute and in taking such a decision he is not required to refer to the merits of the claims of any of the parties to a right to possess the subject of the dispute. The Magistrate is empowered to declare any one of the party to be in possession if it appears to him that such party had been forcibly and wrongfully dispossessed within two months next before the date on which the information was received by the Magistrate or after that date and before the date of his preliminary order. Thus S. 145, Cr. P. C. does not only give a power to be exercised but casts a responsibility on him, if he is satisfied about an apprehension of breach of peace over possession of the land. The word used is "shall". Moreover, the Magistrate is not required to look to the right of any party to possess. He was simply to look to the actual physical possession and that too on the date of the preliminary order. There is, however, a relaxation that if any party had been dispossessed within two months before such preliminary order his actual possession could be declared as if it was on the date of the preliminary order. The Magistrate is no why required to look to the title or even to the right of a particular party to possess as the proceeding was for maintaining law and order and to prevent breach of peace and was in that sense a measure to maintain the possession, even if unlawful, till the rights of the parties are determined by a competent civil Court. ( 16 ) SECTION 146, Cr. P. C. empowers the Magistrate, after making the preliminary order under S. 146 (1), Cr. P. C. to attach the subject matter of dispute if he considered the case to be one of emergency and such attachment was to continue until the competent Court had determined the rights of the parties on the question of possession. Once a land is attached and no receiver is appointed by the Civil Court the Magistrate may appoint a receiver under the control of the Magistrate to look after the property in question. ( 17 ) THE main points of which the proceedings have been sought to be assailed are that the present applicants are co-owners of the property. This in fact is a question of right to possess and will have a bearing only as some piece of evidence towards actual physical possession and may not, therefore, bar a proceeding under S. 145, Cr. This in fact is a question of right to possess and will have a bearing only as some piece of evidence towards actual physical possession and may not, therefore, bar a proceeding under S. 145, Cr. P. C. unless there is declaration of actual joint possession. To be joint owners is one thing and to be in joint possession is another. The other point on which the proceeding is said to be bad is that there had been an order by a civil Court. The civil Court was approached on the same day when the Sub-Divisional Magistrate, Nainital, was approached and the Magistrates order is prior in appoint of time so far the preliminary order under S. 145, Cr. P. C. is concerned. Moreover, the civil Courts order spoke of status-quo only and it did not indicate as to who was inactual possession and who was to be restraining from disturbing the possession of the other. There enters the Magistrate to keep peace as the parties are really disputing about actual physical possession. There being no direction from the Civil Court about actual physical possession, the order of the civil Court would not stand on the way of taking up a proceeding under S. 145, Cr. P. C. when the Magistrate was satisfied about existence of apprehension of a breach of the peace. ( 18 ) SEEN from this line it cannot be stated that the Magistrate lacked initial jurisdiction to draw up the proceedings under S. 145, Cr. P. C. or even to continue with the proceedings. So far the attachment order is concerned the order dated 23-7-98, in my view, requires to be modified as certain observations were made therein. In this connection the learned counsel for the applicants relied on certain case laws. In the decision reported in (1998) 36 All Cri C 699 a proceeding under S. 145, Cr. P. C. was quashed as an earlier civil suit for possession was pending. The situation is different in the case at our hands as the order of the Civil Court was admittedly recorded after the initiation of 145 Cr. P. C. proceedings. In the decision reported in (1998) 36 All Cri C 699 a proceeding under S. 145, Cr. P. C. was quashed as an earlier civil suit for possession was pending. The situation is different in the case at our hands as the order of the Civil Court was admittedly recorded after the initiation of 145 Cr. P. C. proceedings. Reliance was also placed on a decision of the Punjab and Haryana High Court as reported in 1992 Cri LJ 3422 in which it was held that when status quo order was passed in a suit relating to possession between the parties pending in the civil Court an order of attachment under S. 146, Cr. P. C. would not be passed as it would amount to encroachment upon jurisdiction of the civil Court. The same High Court had earlier also recorded this view in the case of Ram Kishan Dass as reported in 1988 Cri LJ 291. Here also the civil suit was pending and the Court had recorded an order for maintenance of status-quo. It was held that the order of attachment of the land and appointing a receiver under S. 146, Cr. P. C. was not justified. ( 19 ) IN the case at our hands the civil suit was filed by the present opposite party in suit No. 75 of 1998 in which the parties were the same as are before this Court. The injunction order was made for certain different relief that the defendants be directed not to alienate any portion of the suit property during the pendency of the suit nor should they take forcible possession nor would bring a change in the suit property. An order was passed by the Civil Judge, (Senior Division) Nainital, on 25-6-96 that both the parties would maintain status quo on the suit property as per commission report and would not make over possession to a third party. The Commission report spoken of in the order was obtained on application of the plaintiff. It was accepted before the civil Court that the defendant No. 1 had taken possession on 4-6-1998. The commission report suggested that possession was there with both the parties and only evidence would indicate as to who was in possession of which portion and as such the status-quo order was directed. It was accepted before the civil Court that the defendant No. 1 had taken possession on 4-6-1998. The commission report suggested that possession was there with both the parties and only evidence would indicate as to who was in possession of which portion and as such the status-quo order was directed. This was certainly a direction for maintaining status quo as regards possession on 25-6-98 in view of this and in view of the judgment relied upon by the applicants as also in view of comments recorded by me on 23-7-98 the attachment order dated 16-7-98 cannot be held to be legal and must be quashed. ( 20 ) IN the result the application stands disposed of with a direction that proceedings under S. 145, Cr. P. C. before the Court shall go on and shall be concluded at the earliest. It is further directed that attachment order recorded by the Magistrate on 16-7-1998 stands quashed and the parties shall maintain status quo as on 25-6-98 till a decision is arrived at by the Magistrate under S. 145 (6) Cr. P. C. Order accordingly. .