IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.6567 of 2008 1. ASHOK MISHRA son of Late Nakul Nath Mishra, 2. Dilip Mishra, son of Late Nakul Nath Mishra, 3. Bhagwan Mishra, son of Late Kesar Lal Mishra, 4. Dipak Mishra @ Dipak Kr. Mishra, son of Bhagwan Mishra, All resident of village – Beldiha, P.S. – Dhoraiya, Distt. – Banka. ----------------------- Petitioners. Versus 1. THE STATE OF BIHAR 2. Nil Kanth Mishra, son of Late Bhudeo Mishra, Resident of village – Beldiha, P.S. – Dhoraiya, Distt. – Banka. --------------- Opposite Parties. ----------- For the petitioner : Mr. Ajay Mukharjee, Adv. For the Opp. Party no. 2 : Rajib Ranjan Jha, Adv. ----------- 04 21.04.2010 Heard learned counsel for the petitioners as well as opposite party no.2 and State. This application has been filed seeking quashing of the order dated 13.11.2007, passed by Sub-Divisional Magistrate, Banka, in connection with Case No. 862 of 2007, a proceeding under Section 145 of the Criminal Procedure Code. Contention of learned counsel for the petitioners is that the dispute between the parties is of a piece of land having an area of six decimals, Khesra No. 957, Khata No. 12 in village – Beldiha, P.S. – Dhoraiya, District – Banka. The main contention of learned counsel for the petitioners is that the aforementioned land contains - 2 - residential houses of the parties, on this basis, it is submitted that no proceeding under Section 145 of the Criminal Procedure Code is maintainable. Learned counsel for the opposite party no. 2 is in agreement with the legal position but agitated existence of respective houses of the parties over the disputed land. According to him, it is nothing but a baron piece of Bhith land. My attention was drawn from the Bar towards paragraph no. 9 of the application filed by the opposite party here to initiate proceeding under Section 144 Criminal Procedure Code and show cause filed by the applicants before the court below wherein paragraph no. 7, it is mentioned that the land which is in dispute is a raiyati and ancestral land. It is also submitted from the Bar that there is no other material on record to throw light on its controversy, whether the subject matter of the proceeding before the court below contains residential houses or not. In view of the legal and factual aspects as mentioned above, it is crystal clear that if the proceeding before the court below contains residential houses, no proceeding under Section 145 Criminal Procedure Code is - 3 - maintainable. But to arrive at the final conclusion, the court below is directed to held a preliminary inquiry on this point alone what is contends over the subject matter of the proceeding and only on conclusion of the inquiry pass appropriate order in accordance with law. With this observation and liberty, this application stands disposed of and parties are directed to cooperate before the trial court to conclude the inquiry preferably within three months. Rajeev/ (Akhilesh Chandra, J.)