- (1.) THIS is an application under Section 561-A, Cr. PC arising out of proceedings under Section 145, Cr. PC On the report of the Station Officer Qasimabad the Sub-divisional Magistrate. Mohammadabad held that there was an apprehension of breach of peace in respect of a shop situate in village Bahadur Ganj. police station Qasimabad, district Ghazipur. He therefore, passed a preliminary order on 19-7-1972 and attached the shop on 25-7-1972. The Magistrate was unable to decide as to who was in actual possession of the disputed shop referred the dispute to Mun-sif. Mohammadabad under Section 146 Cr. PC A finding was returned by the Munsif on 24-4-1973. In pursuance thereof the Sub-divisional Magistrate passed his final order on 4-6-1973. Aggrieved thereby Kanhaiya has filed the present application in this Court for quashing the aforesaid order of the Sub-divisional Magistrate. Mohammadabad.
(2.) I have heard counsel for the parties. The findings recorded by the Munsif. Mohammadabad in the reference under Section 146, Cr. PC are as follows: 1. That both the parties were carrying on their business in the shop in dispute at the time of the preliminary order. 2. That the first party was in actual physical possession of one almirah over which the words "jai Hind" bad been scribed and that the second party was in actual physical possession of the second almirah kept in the left side in the shop. On these findings the Munsif held as follows: Both parties are accordingly entitled to maintain their respective possession over the disputed shop till either of the party is evicted by some competent court of law in due course. He has further directed that each of the parties shall remain in possession of the one almirah each found in the shop in question.
(3.) LEARNED Counsel for the applicant has submitted that the Magistrate having held that the shop in question was in joint possession of the parties had no jurisdiction to proceed under Section 145. Cr. PC He has further submitted that the impugned order of the Magistrate directing delivery of moveable property namely one almirah to each of the parties was an order without jurisdiction and is liable to be quashed.;