IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.20534 of 2006 1. RAM CHANDRA KUNWAR @ RAMCHANDRA KUMAR S/O LATE JAGARNATH KUNWAR 2. MANORANJAN KUMAR KUNWAR @ FANTUS KUMAR 3. GOURAV KUMAR KUNWAR @ SANTU KUMAR, BOTH S/O OF PETITIONER NO.1, ALL R/O VILLAGE-GHORPITIA, POS- SHAHKUND, DISTT- BHAGALPUR--- PETITIONERS Versus 1. THE STATE OF BIHAR 2. KRISHNA CHANDRA KUNWAR S/O SURESH KUNWAR, R/O VILLAGE- GHORPITIA, PS- SHAHKUND, DISTT-BHAGALPUR—OPP.PARTIES ----------- For the Petitioners: Mrs.Anjana Prakash, Sr.Advocate Mr.Ram Sevak choudhary,Advocate For opp.party no.2: Mr. N.K.Agrawa,Sr.Advocate Mr. Diwakar Upadhyaya,Advocate For the State: Mr. APP ----------- 6 21.4.2009 Heard learned counsel for the petitioners, learned counsel for opposite party no.2 as well as learned APP for the State. The challenge in the present application is to the revisional order dated 6th February, 2006 passed in Criminal Revision No. 342 of 2004 by learned Sessions Judge, Bhagalpur which in turn confirmed the order dated 21.8.2004 passed by Sub- Divisional Magistrate in Misc. Case no. 1187 of 2000 where a direction was issued to the petitioners to remove the wall constructed on the land which had the effect of blocking the passage on the southern side of the house of the opposite party no.2 as well as blocking of air, light and enjoyment of the property. Both the parties are related to each other and both of them have claimed right, title and interest over the piece and parcel of land having their respective share in this regard. But somewhere along the conduct of the present petitioners in constructing the wall and blocking the passage as well as light and - 2 - air to the property of the opposite party no.2 led to initiation of a proceeding under section 147 of the Cr. P. C. After filing of a petition dated 8.9.2000 the matter was referred to the police for enquiry and report. The police in its report dated 10.11.2000 has stated and certified that the grievance of the opposite parties and the background to the filing of the petition was made out. In absence of the opposite parties, who were away from home for medical treatment of one of the family members and taking advantage of the same the wall came to be constructed. Based on the same, enquiry was initiated, witnesses were examined from both sides and learned Magistrate came to a considered opinion that a case under section 147 of the C.P.C. was made out and direction was given for removal of the said wall. Since the order did not satisfy the present petitioners, the same was challenged in revision which came to be registered as Criminal Revision No. 342 of 2004. The revisional court after recording the rival submissions and the question of law urged, decided to uphold the order of Sub-Divisional Magistrate and that two orders are now under challenge before this Court in this present application. Learned Senior counsel representing the petitioners submits that the law is quite well settled on this issue. In absence of categorical finding that the obstruction in question was within three months prior to the proceeding and the report of the police the whole order of learned Sub-Divisional Magistrate - 3 - must go. It is also submitted that since the land belongs to the opposite parties so they can not make a grievance and take recourse to a proceeding under section 147 of the Cr. P.C. The remedy lies under section 145 of the Cr. P.C. and not under section 147 of the Cr. P C. Learned Senior counsel representing the opposite party no.2 submits that there is categorical report of the police filed before the court below and if it is read together with paragraph-5 of the petition filed by the opposite parties contained in annexure-1, it is clear that obstruction in question had been caused three months prior and that was the basis for the proceeding which is evident from the evidence of P. Ws. 1, 2 and 3 in this regard. The submission made on behalf of the petitioners is only hyper technical submission which is not entertainable in the light of the given facts and position stated in both the decisions rendered by Sub-Divisional Magistrate as well as the by the revisional court. The Court does not find any legal infirmity in the orders and this Court is not inclined to set aside the same. The application has no merit. This application is accordingly dismissed. RPS (Ajay Kumar Tripathi,J.)