Dilip Poddar vs State of Bihar, Amod Kumar and Others

P.K. Deb, J.—Heard learned Counsel for both the 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 S.D.O. Gogari on 12.6.1998 in Case No. 298 (M 1996 in a proceeding u/s 145 of the Code of Criminal Procedure in short Code of Criminal Procedure).

In the proceeding u/s 145 Code of Criminal Procedure. 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 dispossessed. Learned Executive Magistrate considered that position and then had withdrawn the attachment observing that 1st party was in possession of the residential house.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 Judge''s such observation regarding 1st Party''s possession was in respect of attachment alone and the proceeding u/s 145 Code of Criminal Procedure. was still continuing. Hence this petition under Article 226 of the Constitution of India.

After hearing learned Counsel of 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 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 u/s 145 Code of Criminal Procedure. Directing the parties to seek their grievances before the appropriate court.

Considering all aspects of the matter, in my considered view, the proceeding u/s 145 Code of Criminal Procedure. 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 u/s 146(1) Code of Criminal Procedure. Be that as it may, without going into such details I hold that it was a fit case where whole of the proceeding u/s 145 Code of Criminal Procedure. 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 redressed by the aggrieved party.