IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.38170 of 2004 BHARAT RAI son of late Daroga Rai, resident of village Marpa Sripal, Police Station Majorganj, District Sitamarhi. . . . . . Petitioner. Versus 1. THE STATE OF BIHAR 2. Sukhdeo Mishra son of late Manif Mishra, , resident of village Marpa Sripal, Police Station Majorganj, District Sitamarhi. . . . . . . Opposite Parties. For the Petitioner : Mr. Arun Kumar, Advocate, Mr. Shiv Shankar Thakur, Advocate, For the Opp. Party no.2 : Mr. Ramesh Kr. Chaudhary, Advocate, For the State : Mr. Jharkhandi Upadhyay, A.P.P. ----------- 9/ 14.12.2009 Heard learned counsel for the petitioner and the State. Petitioner has prayed for quashing order dated 24.09.2004 passed by Sessions Judge, Sitamarhi, in Cr. Revision No. 100 of 2004 whereby he rejected the application of the petitioner to set aside the order dated 16.03.2004 passed in Misc. Case no. 688 of 1999 whereby Executive Magistrate, Sitamarhi (Sadar) directed to demolish the construction, as it was raised during operation of attachment order under Section 146(1) of the Cr.P.C. The fact of case in short is as follows: The petitioner filed an application for restraining the opposite parties from making construction on the land. The aforesaid application gave rise to proceeding under Section 144 Cr.P.C. Subsequently, 145 Cr.P.C. proceeding was initiated on 19.07.1999. The learned Magistrate passed an order of attachment under Section 146(1) of the Code of Criminal Procedure on 10.08.1999. Opposite party, thereafter, filed a petition stating therein that during the proceeding under Section 146(1) of the Code of Criminal Procedure, the petitioner has made construction and has raised wall. - 2 - The Magistrate directed the police to submit a report. It would appear from various documents including those of Superintendent of Police, Sitamarhi, as well as S.D.P.O., Sitamarhi and officer-in-charge of the local police station that a wall has been raised on the disputed land and preparations are afoot for further constructions. The magistrate, thus, finds that petitioner has violated the order of attachment under Section 146(1) of the Code of Criminal Procedure and directed him to demolish the raised structure on the disputed land. The petitioner filed a revision application bearing Cr. revision no. 100 of 2004, which was dismissed on 24.09.2004 by Sessions Judge, Sitamarhi. The Sessions Judge, Sitamarhi, while referring to various decisions as reported in AIR 1975 Allahabad 45 in case of Hari Nanda Agrawal Vs. S.N. Pandita, AIR 1956 Patna 455 as well as A.I.R. 1963 Raj. 3 observed that where any construction has been made in violation of injunctory or prohibitory orders, status quo ante could be restored. Learned counsel for the petitioner submits that the criminal court has no power to restore status quo ante and to pull down the structure even if it has been constructed in violation of order under Section 146(1) of the Code of Criminal Procedure. Mr. Yogendra Mishra, learned counsel appearing for the opposite party submits that the Second revision application is not maintainable. He submits that various reports of the authorities would establish beyond doubt that structure was raised during the operation - 3 - of order under Section 146(1) of the Code of Criminal Procedure. After hearing the counsel for the parties, this Court finds that petitioner has not challenged the order whereby the enquiring officers found that the construction in question was made during the pendency of order of attachment under Section 146(1) of the Code of Criminal Procedure. If any construction is made in violation of order under Section 146(1) of the Code of Criminal Procedure and has been duly proved, the Magistrate has ample power to set at naught such alleged violation. The submission of the learned counsel for the petitioner that the Magistrate has no power to direct demolishing of the wall, which has been raised during the pendency of 145 of the Code of Criminal Procedure proceeding in teeth of order under Section 146(1) of the Code of Criminal Procedure is devoid of any merit and is rejected. The petitioner may pursue any other remedy available under the law. This application is, accordingly, disposed of. Uday/ (Samarendra Pratap Singh, J.)