S.B. CRIMINAL MISC. PETITION NO. 1601/2008 Date : 18.12.2008 HON'BLE MR. C.M. TOTLA, J. Mr. C.P. Soni for the petitioner. Mr. V.R. Mehta, P.P. = = = = Learned Public Prosecutor accepts notice on behalf of State. Petitioners request reversal of Magistreal order dated 29.8.08 affirmed by revisional court's order dated 19.11.08. According to order, initiating proceedings under Section 145 and 146(1) Cr.P.C, Executive Magistrate attached and appointed SHO as receiver. Learned counsel for the petitioner argued that (i) no preliminary order under Section 145(1) Cr.P.C is drawn (ii) no apprehension of breach of peace exists – in any case learned Magistrate did not record or reached to conclusion of apprehension of breach of peace (iii) petitioners not given opportunity of hearing (iv) civil suit is pending before Civil court. (v) respondents are claiming possession on the basis of certain alleged agreement entered with father of petitioners no.1 & 2 (vi) for individual disputes, such proceedings contrary to law (vii) conditions essential for initiating proceeding under Section 145 cr.P.C are lacking. In support of contentions, reliance placed on decisions : (i) 2003(3) Criminal court cases 306 Gopichand Vs. Mohd. Hanif (ii)1977 Cr.LR. Page 667 Narayan lal Vs. Shankar lal (iii)2002(3) Criminal Court cases Page 409 Ramswaroop Vs. State (iv)2002(2) Criminal court cases Page 503 Learned Public Prosecutor stated that petitioners may raise all grounds and objections before the Magistreal court as notices are issued to them. Considered arguments and perused the impugned order and also order of revisional court dated 19.11.08. The civil suit is said to be proceeding but on behalf of petitioner, it is admitted that no interim or otherwise order by civil court is in effect. Having looked at impugned order, it appears that learned Magistrate perusing police complaint and describing nature and type of dispute, reached to the conclusion that for possession, every apprehension is of breach of peace and proceeding under Section 145 Cr.P.C. ordered attachment and appointment of receiver - directed further proceedings on 17.09.08. Learned Sessions considering all the aspects in detail upheld the order. From the order dated 29.08.08, it is clear that the case is posted for next hearing. The provisions of Section 145, 146 Cr.P.C. are very clear. As the case was posted for further hearing and petitioners were not present at the time of impugned order, obviously procedure prescribed under Section 145 and related provisions are to follow. As held by Hon'ble Supreme Court in 2002(2) Criminal Court Cases SC 187 , if civil suit for injunction is pending, this is for the parties to approach civil court for interim order. Considering above, as the petitioners can raise all the grounds before the Executive Magistrate, the petition is liable to be rejected. Accordingly, rejecting the petition, it is directed that Executive Magistrate shall consider objections and aspect put up by the petitioners without in any way influenced by earlier orders including this one. Petitioner may submit his objections on date fixed for proceedings or in January, 2009. With these observations, the misc petition stands decided. (C.M. TOTLA), J.