This is an application under Section 561 - A Cr.P.C. arising out of proceedings under Section 145, Cr.P.C. 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 Munsif, Mohammadabad under Section 146 Cr.P.C. 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.P.C. 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" had 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 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.P.C. He has further submitted that the impugned order of the Magistrate directing delivery of movable property namely one almirah to each of the parties was an order without jurisdiction and is liable to be quashed.

4. So far as the findings recorded by the Munsif and endorsed by the Magistrate are concerned, they cannot be assailed reviewed or revised as there is specific provision under Section 146(1)(d), Cr.P.C. prohibiting such interference but what has to be seen in this case is whether on the findings already arrived at the impugned order is legally maintainable.

5. On the first question raised by learned counsel there is authority of this court that in cases where the Magistrate finds that the parties are in joint possession of the subject-matter in dispute, he becomes functus officio and the proceedings under Section 145, Cr.P.C. should be dropped. For reference mention may be made to the decision of this Court reported in Khem Chand v. Balwant, AIR 1967 All 44 = (1967 Cri.L.J. 18). I am thus of opinion in agreement with the above decision that in view of the findings of joint possession recorded by the Magistrate he had no jurisdiction to proceed with the matter and the proper order for him to pass was to quash the proceedings under Section 145 Cr.P.C. and to direct the parties to get their rights adjudicated upon by a competent civil court.

6. The second submission of the learned counsel for the applicant is that a criminal court had no jurisdiction to pass order with respect to movable property in proceedings under Section 145 Cr.P.C. I am of opinion that this submission also has force. Section 145, Cr.P.C. concerns itself with disputes regarding immovable property. It does not empower the Magistrate to pass orders with respect to movable property. It has been held by a Division Bench of this court in a case reported in Mt. Mehdei v. Beni Prasad, AIR 1920 All 225 (2) = (21 Cri.L.J. 242), that "Section 145, Cr.P.C. relates only to immovable property and a Magistrate has no jurisdic