1. Heard learned counsel for both parties. This petition has been filed for quashing the order passed by the Sessions Judge, Khagaria in Cr. Revision No. 98 of 1998 and also against the order passed by the SDO Gogari on 12.6.1998 in Case No. 298 (M 1996 in a proceeding under Section 145 of the Code of Criminal Procedure (in short Cr PC).

2. In the proceeding under Section 145, Cr PC attachment order was passed although admittedly there was residential house over the plot. The contention of the opposite parties was that they were in physical possession of the residential house but while implementing attachment order, they were disposed. Learned Executive Magistrate considered that position and then had withdrawn the attachment observing that 1st party was in possession of the residential house. That order was challenged before the Sessions Judge in revision. Learned Sessions Judges such observation regarding 1st Partys possession was in respect of attachment alone and the proceeding under Section 145, Cr PC was still continuing. Hence this petition under Article 226 of the Constitution of India.

3. After hearing learned counsel for both the parties and on consideration of all materials it could be found that practically the fight is in between the parties regarding right of possession and the right to title over the property in question which definitely cannot be decided by a criminal Court. The property in question is a residential house and it is beyond the power of the Executive Magistrate to decide the possession or otherwise. In that view of the matter, while passing the order of withdrawal of attachment order, the learned Executive Magistrate ought to have passed order dropping the proceeding as contemplated under Section 145, Cr PC directing the parties to seek their grievances before the appropriate court.

4. Considering all aspects of the matter, in my considered view, the proceeding under Section 145, Cr PC over a residential house was misconceived one on the face of it and the same ought to have been brought by the learned Magistrate while withdrawing the order passed under Section 146 (1), Cr PC. Be that as it may, without going into such details I hold that it was a fit case where whole of the proceeding under Section 145, Cr PC ought to have been dropped and it is accordingly dropped. However, any observation made by the Executive Magistrate in respect of possession over the house in question of the parties shall not be binding on any of the parties in any other forum while seeking redressal by the aggrieved party.