Uttarakhand High Court
Vishambhar Singh Negi And Others … vs State Of Uttarakhand And Others on 27 April, 2026
2026:UHC:3172
Judgment reserved on: 10.04.2026
Judgment delivered on: 27.04.2026
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application (C-482) No. 230 of 2021
Vishambhar Singh Negi and others -------Petitioners
Versus
State of Uttarakhand and others
-----------Respondents
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Presence:-
Mr. Ramji Srivastava, learned counsel for the applicant.
Mr. Amit Bhatt, learned Government Advocate with Mr. Kuldeep
Rawal, learned AGA for the State.
Mr. Lalit Sharma and Mr. Rajesh Pandey, learned counsel for
respondent no. 2.
-----------------------------------------------------------------------------
Hon'ble Mr. Subhash Upadhyay, J.
1. The present Criminal Misc. Application under
Section 482 of the Code of Criminal Procedure, 1973,
(Cr.P.C.), was filed by the applicant Shir Vishambhar
Singh Negi (hereinafter referred as ‘applicant no.1’)
assailing the order dated 30.01.2021, passed by learned
Additional Sessions Judge, IIIrd Dehradun, in Criminal
Revision No. 09 of 2019, Vishamber Singh Negi vs. State
of Uttarakhand and others, and order dated 11.01.2019,
passed by City Magistrate, Dehradun, in Case No. 52 of
2018, State of Uttarakhand through Sub Divisional
Magistrate (Sadar), Dehradun vs. Vishamber Singh Negi
and another, under Section 133 Cr.P.C. directing the
applicant no. 1 and performa respondent no. 3 to remove
the encroachment from 15 ft. width public path adjoining
to their houses within a period of one month. During
pendency of the revision, the applicant no.1 Shri
Vishambhar Singh Negi died and is represented by his
2026:UHC:3172
legal heirs.
2. The brief facts, which led to the filing of the
present C-482 application is that, an application under
Section 133 Cr.P.C. was filed by the respondent no.2,
who claimed herself to be widow of late Anil Pundir,
residing with her aged parents, before the District
Magistrate Dehradun on 30.01.2018 making complaint
that the public-path has been blocked by the applicant
no. 1 and he is parking his vehicles in the remaining part
of the path, thus creating public nuisance. A request
was, as such, made for opening the blocked pathway and
for restraining the applicant no. 1 from parking vehicles
and creating nuisance.
3. The District Magistrate, Dehradun on
05.02.2018 directed the S.D.M., Dehradun to carry a
spot inspection and to take appropriate action. A team of
Revenue Officials and Naib Tehsildar was constituted on
7th February, 2018, which submitted a report before the
S.D.M.Dehradun. The said report along with his
recommendation was submitted by the S.D.M. on
14.03.2018 to the City Magistrate, Dehradun for taking
cognizance under Section 133 Cr.P.C. against the
applicant no.1. The City Magistrate on 24.03.2018,
passed an order, by which, the applicant no.1 was asked
to remove the encroachment made on public-path by
09.04.2018 or to show cause as to why further
proceedings under Section 136/138 Cr.P.C., may not be
carried out against him. The applicant no.1 submitted
his response and after hearing the parties, the order
dated 11.01.2019 was passed by the City Magistrate,
Dehradun, in Case No. 52 of 2018, under Section 133
Cr.P.C. The said order was put to challenge by the
2026:UHC:3172
applicant no.1 by filing the Criminal Revision No. 9 of
2019, which was decided on 30.01.2021 by the learned
Additional Sessions Judge, IIIrd, Dehradun against
which the present Criminal Revision has been filed.
4. Learned counsel for the applicant assailing the
aforesaid orders, has made the following submissions.
(i) The order passed by the City Magistrate under
Section 133 Cr.P.C. and the order passed by
learned Additional Session Judge are liable to be
quashed because for the similar controversy, a
Civil Suit (Original Suit No. 47 of 2018), was filed
which is still pending before the Civil Judge
(Junior Division), whereby a status quo order was
passed on 3rd April, 2018.
(ii) The father of respondent no. 2, Shri Teerath
Singh Rawat has filed a written statement and
also counter-claim in the said suit whereby it was
pleaded that the applicant no. 1 may be directed
not to interfere in their possession and the
application claiming the said relief was dismissed
on 14.02.2019.
(iii) That when the father of respondent no. 2, who
was the defendant in the said suit, could not
obtain any order then the respondent no. 2 filed a
complaint before the District Magistrate, wherein
the proceedings were initiated under Section 133
Cr.P.C. and the impugned order dated 11.01.
2019 was passed, which was affirmed in the
Criminal Revision.
(iv) The path in dispute is not a public path, and the
road, on which the alleged encroachment is said
to be made by the applicant no.1 and his legal
heirs is a dead end and as such, the path is being
2026:UHC:3172
used by the applicant and the three other
respondents only.
(v) The report submitted by the team constituted by
the S.D.M did not give any notice to the applicant
no. 1 and the report was prepared illegally
without any documentary evidence.
(vi) The learned Additional Sessions Judge,
Dehradun dismissed the Criminal Revision
without application of mind and without
considering the fact that, in fact, a civil dispute
was given a criminal colour and there was no
public nuisance which required the attention of
the authorities under section 133 Cr.P.C.
(vii) Emergent power to readdress any issue under
Section 133 Cr.P.C. can be used to cure an
immediate wrong and cannot be used to cure a
defect which has taken a shape of permanent
wrong which can only be corrected under the
civil remedy.
5. Thus, in sum and substance, the contention of
learned counsel for the applicant is that in nature of civil
dispute and where no public element is involved criminal
proceedings cannot be used as a shortcut for redressal of
grievance. Learned counsel for the applicant has placed
reliance on the following judgments in support of his
contention:-
(i) Vasant Manga Nikumba & others vs. Baburao
Bhikaanna Naidu (1995 Supp (4) SCC 54).
(ii) The Manager, Kodanand Estate vs. The Sub-Divisional
Magistrate & Assistant Collector, Coonoor (2008 (2)
MWN (Cr) 383).
6. Per contra, learned counsel for the respondent
no.1/State submits that the order passed by the City
Magistrate and the learned Additional Sessions Judge
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does not suffer from any infirmity and the court under
revisional power cannot sit as an Appellate Authority and
re-appreciate the evidence and is required to see as to
whether there is any jurisdictional error in the judgment
or there is any perversity. He further submits that mere
pendency of a suit of civil nature cannot operate as a bar
for exercise of power under Section 133 Cr.P.C. Learned
counsel for the State placed reliance on the following
judgments:
(i) Smt. Dr. Mamtesh Gupta vs. The State of U.P. and
another, 2015 (41) RCR (Civil) 482.
(ii) Hari Ram vs. Jyoti Prakash 2011 (2) SCC 682.
(iii) Karam Hussain vs. State of U.P.,
(iv) Ram Narain Singh and another vs. State of U.P.
(v) Rajendra Puri vs. State of U.P.
(vi) Smt. Ramawati vs. State of U.P. and 2 others, 2015
(36) RCR (Criminal) 191.
(vii) Budhwa vs. State of U .P. 2006 Cri J 1037.
7. Learned counsel for the respondent no.2 made
the following submissions.
(i) The proceedings under section 133 Cr.P.c.
were initiated prior in time than the civil suit
proceedings.
(ii) The controversy in the civil suit was different
than the controversy involved in the
application filed under Section 133 Cr. P.C., as
in the civil suit, the applicant no. 1 has prayed
for removal of encroachment of two feet in the
nature of kyari said to be allegedly made by
the father of respondent no.2, on the public-
path. He refers to the copy of the plaint filed by
the applicant no.1 wherein the dispute was
with respect to the alleged encroachment of
two feet on the portion shown as A,B,C,D.,
which was a public path in front of the house
of the respondent no.2, which continued till
the house of the applicant no.1 & performa
2026:UHC:3172
respondent no.3.
(iii) The application under Section 133 Cr.P.C. was
filed before the City Magistrate, as the
applicant no. 1 had obstructed the 15 feet
public path which was being used by the
respondent no. 2 and other residents and
which was shown as a path not only in the
sale-deed of the applicants but also in the sale-
deed of other residents.
(iv) The mere fact that the said public path was a
dead end at the plot of the applicants and
performa respondent no. 3 would not entitle
the applicants to obstruct the said public- path
by installation of a gate.
(v) The appellant by obstructing the said path at
his end used to park the vehicels in front of
the respondent residence in the remaining
path causing hindrance in movement and
creating public nuisance which could be
addressed under Section 133 Cr.P.C.
(vi) The order passed by the City Magistrate under
Section 133 Cr.P.C. is based on the fact finding
report of the Committee and the revisional
authority has also dealt with the said issue in
detail and has recorded a finding that the
public path was encroached and public
nuisance was created by the applicant.
(vii) There is no bar of the proceedings under
section 133 Cr.P.C., vis-a-vis, civil dispute
pending for a different cause of action, and
moreover in the present case the civil suit was
filed after the proceedings were initiated under
Section 133 Cr.P.C.
2026:UHC:3172
8. Learned counsel for the respondent no. 2 has
placed reliance on the following judgements:
I. Smt. Dr. Mamtesh Gupta vs. The State of U.P.
and another, 2015 (41) RCR (Civil) 484.
II. Hari Ram vs. Jyoti Prakash 2011 (2) SCC 682
III. Karam Hussain vs. State of U.P.
IV. Ram Narain Singh and another vs. State of U.P.
V. Rajendra Puri vs. State of U.P.
VI. Smt. Ramawati vs. State of U.P. and 2 others
2015 (36) RCR (Criminal) 191
VII. Budhwa & others vs. State of U.P. & others
2006 Cr. L.J. 1037
9. Heard learned counsel for the parties and
perused the record.
10. A Coordinate Bench of this Court vide order
dated 12.12.2025 has asked the learned counsel for the
applicant to specify as to whether he has placed a gate in
front of his house on the dead end of the pathway and
thereafter, on 18.12.2025, the records of the proceedings
under Section 133 Cr.P.C. were summoned. The order
dated 12.12.2025 and 18.12.2025 read as follows:
12.12.2025
“Mr. V.S. Dhapola, Advocate, holding brief of Mr. Ramji
Srivastava, Advocate for the petitioner.
Mr. Amit Bhatt, Government Advocate for the State.
Mr. Lalit Sharma, Advocate and Mr. Jagat Singh Mehra, Advocate,
holding brief of Ms. Devika Tiwari, Advocate for the private
respondents.
The Court asked learned counsel for the petitioner as to
whether he has place a gate in front of his house on the dead end of
the pathway. He submits that he needs time to get instructions.
List on 18.12.2025 as a first case after fresh.”
18.12.2025
“Mr. Ramji Srivastava and Mr. Vikram Singh, Advocates for the
2026:UHC:3172
petitioner.
Mr. Amit Bhatt, Government Advocate with Mr. Kuldeep Singh
Rawal, AGA for the State.
Mr. Lalit Sharma, Advocate for respondent no.2.
Let call for the record of the proceedings initiated under Section
133 of the Code of Criminal Procedure, 1973.
List on 05.01.2026 at 04:00 p.m.
Interim order, if any, is extended till the next date of listing.”
11. The records of the proceedings under Section
133 Cr.P.C. have been persued which reveal that the
applicant no. 1 had admitted the fact of installation of a
gate on the pathway. The City Magistrate in its order
dated 11.01.2019, has dealt with the said aspect and has
recorded a finding to the said effect, as follows:
“esjs }kjk i=koyh ij lfEefyfr nLrkostks dk voyksdu ,oa
ifj’khyu fd;k x;k ,o foi{khx.k dh cgl dks lquk x;kA çdj.k esa
i{kx.kksa ds vkokl ds e/; lM+d ekxZ ds laca/k esa fookn gSA foi{khx.kksa ds
}kjk f’kdk;rdrkZ ds fo:) bl vk’k; dk okn flfoy U;k;ky; nsgjknwu
esa ;ksftr fd;k x;k fd f’kdk;rdrkZ Jh rhFkZ flag usxh vkfn us 15 QhV
pkSM+s jkLrs ij ckxhpk dj 02 QhV jkLrk nck j[kk gS] mä okn orZeku esa
flfoy U;k;ky; esa xfreku gSA vr% bl fcUnq ij bl U;k;ky; }kjk
fVIi.kh djuk vFkok vkns’k nsuk mfpr ugha gSAblds vfrfjä f’kdk;rdrkZ ds f’kdk;rh çkFkZuk i= ds vk/kkj
ij tks okn bl U;k;ky; esa ;ksftr fd;k x;k gS mlesa ;g fu/kkZfjr gksuk
gS fd D;k foi{khx.k }kjk lkoZtfud 15 QhV pkSM+s jkLrs dks nhokj ,oa xsV
yxk dj can fd;k x;k gS vFkok ughaA
çdj.k esa jktLo Vhe dh vk[;k] çfroknh la[;k nks Jh iwju ds
}kjk çLrqr çkFkZuk i=@nLrkost ,oa foi{kh la[;k ,d Jh fo’kEcj flag ds
lyXu nLrkostks ,oa ekSf[kd c;ku miyC/k gSA i=koyh ij f’kdk;drkZ ,oa
foi{kh la[;k&01@02 dh fodz; i= dh çfr miyC/k gS ftlds voyksdu
ls Li”V gS fd f’kdk;rdrkZ ,oa çfroknh &02 ds vkokl ds if’pe fn’kk
dh vksj 15 QhV dk jkLrk gS ,oa çfroknh la[;k 01 ds vkokl dh iwjc
fn’kk dh vksj Hkh 15 QhV dk jkLrk gSA jktLo Vhe dh fjiksVZ ds lkFk
layXu utjh uD’ks esa i{kdkjksa ds vkokl ds e/; jkLrk n’kkZ;k x;k gS
ftles xqykch jax ds {ks=] tks jkLrs dk fgLlk gS og çfroknhx.k }kjk
vfrØfer jkLrs ds :i esa n’kkZ;k x;k gSA pwafd foØsrk }kjk ;g 15 QhV
2026:UHC:3172
dk jkLrk NksMrs gq, IykfVax dh x;h vr% ;g jkLrk lacaf/kr leLr IykV
gsrq lkoZtfud jkLrk gS ,oa ftl çdkj f’kdk;rdrkZ vius IykV ds lkeus
ds jkLrs ij fof’k”V vf/kdkj dk nkok ugha dj ldrk gS tks çfroknhx.kksa
ds mi;ksx ds fy, Hkh gS] tgk¡ ls çfroknhx.kksa dks vius vkokl gsrq jkLrk
çkIr gS] mlh çdkj çfroknhx.kksa }kjk Hkh vius vkokl ds lkeus ds 15
QhV jkLrs ij Hkh fof’k”V vf/kdkj dk nkok ugha fd;k tk ldrk gS tks
lkoZtfud mi;ksx dk jkLrk gSA ftldks bl rF; ls Hkh cy feyrk gS fd
mijksä vfrdzfer jkLrs dks foi{kh la[;k&01 ds }kjk ekuuh; U;k;ky;
flfoy tt ¼twåfMå½- nsgjknwu esa ;ksftr okn esa Lo;a }kjk is’k utjh
uD’ks esa ftldh çfr çfroknh la[;k&01 }kjk bl U;k;ky; esa Hkh miyC/k
djk;h gS] esa çfroknh la[;k 01 ,o çfroknh l[;k&02 dh laifRr ds e/;
[kkyh NksMk x;k n’kkZ;k gSA ek= bl rF; ls fd ;g jkLrk vkxs ugha
tkrk gS tSlk fd foi{kh la[;k&01 }kjk vius c;kuksa ,oa cgl esa Hkh dgk
x;k gS] foi{kh la[;k&01 dk bl lkoZtfud jkLrs ij vf/kdkj ugha curk
gS ,oa ftls vfrdzfer djuk yksd U;wlsal dk –R; gksxkAfoi{kh l[;k&01 }kjk ;g Hkh dgk x;k gS fd f’kdk;rdrkZ@
vfHk;kstu i{k dks Lo;a viuk nkok fl) djuk Fkk tks ugha fd;k x;k gS]
ftldk Hkkj çfroknh ij LFkkukarfjr ugha fd;k tk ldrk gS esa Li”V gS
fd vfHk;kstu }kjk çLrqr LFky fujh{k.k vk[;k pkykuh fjiksVZ o nLrkostksa
ls okn Lo;a fl) gS ftlesa çfroknhx.kksa }kjk layXu nLrkostksa ls Hkh cy
feyrk gSA çfroknh }kjk cgl esa ;g Hkh dFku fd;k fd uk;c rglhynkj
elwjh] nsgjknwu dks fjiksVZ nsus dk vf/kdkj ugha Fkk pwafd ;g {ks= muds
{ks=kf/kdkj ls ckgj gS esa Li”V gS fd uk;c rglhynkj elwjh] nsgjknwu dks
ek= tkap Vhe esa lnL; ds :i esa ukfer fd;k x;k gS tks tkap fjiksVZ ds
vuqlkj ekSdk fLFkfr ,oa nLrkostks ds vk/kkj ij dh x;h gS ftl dkj.k
vk[;k ,oa pkykuh fjiksVZ ij dksbZ çfrdwy çHkko ugha iMrk gSA
Proceedings can not be taken as vitiate on the above basis.
vr% mijksä foospuk ds vk/kkj ij ;g Li”V gS fd çfroknhx.kksa
}kjk vius vkokl ds lkeus yxrs gq, 15 QhV lkoZtfud ekxZ ij
vfrØe.k fd;k gS tks yksd U;wlasl dk –R; gS ftls gVk;k tkuk vko’;d
gSA
vr% foi{kh la[;k&01 Jh fo’kEcj flag ,oa foi{kh la[;k&02 Jh
iwju pUn dks vknsf’kr fd;k tkrk gS fd vius&vius vkokl ds lkeus
yxrs gq, 15 QhV lkoZtfud ekxZ ij fd, x, vfrØe.k@ yksd U;wlsal
dks ,d ekg dh vof/k ds Hkhrj@ rd gVkuk lqfuf’pr djsaA ;fn vki
bl vkns’k dk ikyu ugha djrs gS rks nåçålå ds rgr /kkjk 141¼1½ ds
vuqlkj mä vkns’k fd vo>k djus ij Hkkjrh; naM lfgrk ¼1850 dk 45½
2026:UHC:3172
dh /kkjk 188 }kjk micfU/kr ‘kkfLr ds Hkkxh gksxsA blds vfrfjä
nåçålaå dh /kkjk 143 ds varxZr ;g Hkh vknsf’kr fd;k tkrk gS fd mä
yksd U;wlsal dh iqujko`fÙk u gksA
mä vkns’k vkt fnukad 11@1@19 dks [kqys U;k;ky; us
mn~?kksf”kr o gLrk{kfjr fd;k x;kAuxj eftLVªsV]
nsgjknwuA ”
12. The revisional court in Criminal Revision No. 9
of 2019 has also considered the said fact and has
recorded a clear finding of installation of a gate on path
way in Para 7 to para 10 which reads as hereunder:
“7- U;k;ky; us leLr rF;ksa dk fo’ys”k.k fd;kA ewy i=koyh ij
ekStwn çys[k la[;k 4A 28 f’kdk;rdrkZ fuf/k iq.Mhj ds f’kdk;rh i= ij
ftykf/kdkjh lnj nsgjknwu ds vkns’k ls t‚p desVh xfBr djus ds i’pkr~
fnukad 24-03-2018 dks uxj eftLVªsV nsgjknwu }kjk /kkjk 133 lhvkjihlh ds
varxZr foi{khx.k fo’kEcj rFkk iwju pan ds fo:) dk;Zokgh çkjEHk djrs gq,
uksfVl ikfjr fd;k x;k FkkA /kkjk 133 lhvkjihlh ds uksfVl ds voyksdu
ls ;g Kkr gksrk gS fd ;g uksfVl ,d jkLrs dh Hkwfe ij foi{khx.k fo’kEcj
,oa iqju pan }kjk xsV yxkdj jkLrs dk can djus ds dkj.k ls tkjh fd;k
x;k Fkk ,oa bl lnHkZ esa ewy i=koyh ij 4A 4 jktLo mifujh{kd cæhiqj
ds }kjk uD’kk 4 A 4 ls ;g nf’kZr gksrk gS fd mä foi{khx.kksa us jkLrs ij
dCtk dj ml ij xsV cuk fy;k gSA bl ekeys esa vkifÙk o lk{; vkfn ds
voyksdu ls ;g nf’kZr gksrk gS fd bl jkLrs ds lanHkZ esa foi{khx.k us ;g
mfYyf[kr fd;k gS fd ;g jkLrk ,d çkbZosV d‚yksuh esa ,d lkbM ls iw.kZr
jkLrk gS vr% ;g vke jkLrk ugha gS rFkk dkyksuh ds vanj dk ,d dead
end jkLrk gSA vr% ;g jkLrk lkoZtfud u gksdj nks i{kdkjksa ds chp ,d
O;fäxr fookn gS ,oa bls vke turk ds Lrj ij dksbZ ysuk nsuk ugha gSA8- U;k;ky; us fuxjkuhdrkZ ds mijksä ds lnHkZ esa ;g fopkj fd;k gS fd
ewy i=koyh ij çys[k la[;k 4@6 Jherh ghjk nsoh iRuh Jh rhFkZ flag usxh
dh jftLVMZ lsy MhM dh çfr gS tks f’kdk;rdrkZ fuf/k iq.Mhj dh ekrk
gSA bl lsy MhM jftLVMZ ds i`”B 15 ds voyksdu ls ;g Kkr gksrk gS fd
blesa ‘,d [k.M Hkwfe [kljk ua 251 feå jdck 0-076 ,dM+ ;kuh 3243
oxZfQV vFkkZr 302 oxZehVj ftlds iwoZ esa Hkwfe jktsUæ çlkn vkfn uki 70
fQV 3 bap o if’pe esa jkLrk 15 fQV pkSMk uki 70 fQV 3 bap o mÙkj esa
jkLrk 12 fQV pkSM+k’vafdr gSAblds vykok ewy i=korh ij gh çys[k la[;k 4@23 fuxjkuhdrkZ fo’kEcj
flag usxh ds fodz; i= dh çfr 4@24 ds voyksdu ls ;g Kkr gksrk gS fd
blesa fuxjkuhdrkZ dh fooj.k lEifÙk fuEu çdkj ls mfYyf[kr gS Hkwfe/kjh
Hkwfe [kljk ua0 251 jdck 0-055 ,dM+ fLFkr ekStk uRFkuiqj ijxuk nsgjknwu
esa bldh lhek;sa fuEu gSA iwoZ esa 15 fQV pkSM+k jkLrk]———————— if’pe esa
Jherh HkqYyu nsoh———————- mÙkj esa Hkwfe Jh us;ks th————————— nf{k.k
esa Hkwfe Jherh Hkwyu nsoh———————–vafdr gSAbl çdkj ;g lansg ls ijs LFkkfir gksrk gS fd bl ekeys dk ç’uxr jkLrk
15 fQV pkSMk gS ,oa bl dead end jkLrs dks lk{; ds vk/kkj ij
fuxjkuhdrkZ ,oa vU; foi{kh iwju pan }kjk xsV Mkydj can dj fn;k x;k
2026:UHC:3172
gSA9- U;k;ky; us ;g Hkh fopkj fd;k gS] fd bl vjkth jkLrs o bl ij
Jherh ghjk nsoh }kjk fd;s x;s vfrØe.k ds lanHkZ esa ,oa fuxjkuhdrkZ }kjk
fd;s x;s blh jkLrk ij dfFkr vfrØe.k ds lanHkZ esa ,d flfoy okn laå
47@2018 fo’kEcj flg usxh cuke Jherh ghjk nsoh vkfn ds :i esa ntZ gS]
ftlesa gh Jherh ghjk nsoh ds çfrnkok esa ç’uxr jkLrk ij vfrØe.k }kjk
fo’kEHkj flag usxh pyk;eku gSA bl çdkj xsV ds lnHkZ esa flfoy okn
yfcr gS- rc Hkh U;k;ky; us ;g fopkj fd;k gS fd fo}ku voj U;k;ky;
}kjk tkjh /kkjk 133 lhvkjihlh dk uksfVl fnukad 24-03-2018 ,oa rRi’pkr~
fnukad 11-01-2019 dks bl lEcU/k esa tkjh vfre vkns’k iks”k.kh; ,oa iw.kZ
:i ls fof/k vuqdwy gSAbl lanHkZ esa U;k;ky; us fuEu uthjksa dk llEeku voyksdu fd;k] ftles
/kkjk 331 lhvkjihlh ds lanHkZ esa ;g mfYyf[kr gS fd&1-Suresh Prakash vs Krishna Swarup And Ors.-
1976 CrLJ 462 (All)
Neither the injunction nor pendency of the civil
suit or even the fact that the dispute was of civil
nature would bar proceedings under this section.
2-Budhwa vs State of U.P-2006 CrLJ 1037
The nature of the relief, which is granted by the
Executive Magistrate under S. 133 CPC is to
remove the nuisance immediately and if the
proceeding of the case is dropped merely because
a civil suit is pending, the object of sections 133,
137 and 138 CrPC would fail. Mere pendency of
the civil suit does not exclude the right of the
Mogitrate to proceed in accordance with law for
removal of muisance. The proceeding under CrPC
is dropped when a specific order is passed by the
Civil Court in respect of the possession or when
rights of the parties are decided.
3-Rakesh Kumar vs State of U.P. 1994 CrLJ 289
(All)
Parellel proceedings under S. 133 CrPC and civil
suit can continue and there is no bar.
bl lanHkZ esa U;k;ky; us fuxjkuhdrkZ }kjk çLrqr fuEu uthjksa %&
1-Ramchandra Malojirao Bhonsale vs Rasikbhai
Govardhanbhai -2001(3) Crimes 379
2-State of Mysore vs Venkataraman Manjunath
Hegde – 1972 0 Supreme 195
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ç’uaxr lÙkk 15 fQV dk gS ,oa jkLrs ij fdlh Hkh çdkj dk vfrØe.k
Public Nuisance dh ifjHkk”kk esa gh vk;sxkA
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bl lanHkZ esa U;k;ky; us ,d uthj%&
Hari Ram vs Jyoti Prasad & Anr. 2011 (2) SCC
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gS fd fo}ku% voj U;k;ky; }kjk ikfjr vkyksP; vkns’k fnukfdr 11-01-
2019 ‘kq) oS/k o vkSfpR;iw.kZ gSA vr% ;g QkStnkjh fuxjkuh fujLr fd;s
tkus ;ksX; gSA”
13. The question as to whether the pathway was on
the private property of the applicant no.1 or is a public
pathway shown in the sale-deed of the applicant no.1 and
other respondents was considered and a finding to the
said effect was recorded by the City Magistrate and the
learned Additional Sessions Judge, Dehradun. The copy of
the sale-deed of the applicant no.1 and other respondents
and copy of the plaint filed by applicant no.1 was also
taken into consideration while recording the finding that
15 feet pathway shown in front of the property of the
applicant no. 1 as well as in front of the other respondents
was a public path and does not fall under the private
property of the applicant no. 1. The issue, which was to be
considered by the City Magistrate and learned Additional
Sessions Judge was only to the effect as to whether any
encroachment was made on the said pathway and the said
issue was decided by a cogent and reasoned order against
the applicant.
14. The power of the Court under revisional
jurisdiction is limited and it cannot sit as an Appellate
Authority and re-appreciate the finding of facts and
evidence led by the parties. The Hon’ble Apex Court in
the case of Dulichand vs. State of Delhi 1975 (4) SCC
649 has held as follows:
“The appellant preferred an appeal against the order
of conviction and sentence to the Sessions Court, Delhi. The
learned Additional Sessions Judge who heard the appeal, on
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a re-assessment of the evidence, came to the same conclusion
as the learned Magistrate and confirmed the conviction of the
appellant under Section 304-A but taking into account the
fact that the appellant might have lapsed into absent
mindedness at the critical moment, the learned Additional
Sessions Judge reduced the sentence to six month
imprisonment. The appellant, dissatisfied with the order,
preferred a Revision Application in the High Court. Now, the
jurisdiction of the High Court in a Criminal Revision
Application is severally restricted and it cannot embark upon
reappreciation of the evidence, but even so, the learned single
Judge of the High Court who heard the revision application,
examined the evidence afresh at the instance of the appellant.
This was, however, of no avail, as the learned single Judge
found that the conclusion reached by the lower Courts that
the appellant was guilty of gross negligence, was correct and
there was no reason to interfere with the conviction of the
appellant. The learned single Judge accordingly confirmed
the conviction and sentence recorded against the appellant
and dismissed the revision application. Hence the present
appeal by special leave obtained from this Court.”
15. The same view was reiterated by the Apex
Court in the cases of State of Kerala vs. Puttumana Illath
Jathavedan Namboodiri, AIR 1999 Supreme Court 981
and Bindeshwari Prasad Singh vs. State of Bihar (now
Jharkhand, AIR 2002, Supreme Court 2907.
16. I have perused the judgments placed by
learned counsel for the applicants and the respondents.
The learned counsel for the applicants has relied on the
case of Vasant Manga Nikumba (supra) and The
Manager, Kodanand Estate (supra). In the case of
Vasant Manga Nikumba (supra), the issue before the
Court was with respect to the demolition of the 15 shops
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and the court on the basis of perusal of the photographs
of the building concluded that there was no reason to
demolish the shops immediately. The facts of the said
case are different as in the present case, the issue is of
the encroachment made on public path. The City
Magistrate, Dehradun and the learned Additional
Sessions Judge, Dehradun, based on the report
submitted by the authorities and taking into
consideration the sale-deed of the applicant no.1 and
other residents, which discloses the public path to be in
front of the houses of the applicant and the respondents,
concluded that the installation of a gate on the said
pathway by the applicant no.1 was a public nuisance.
Similarly, the facts of the case of the The Manager,
Kodanand Estate (supra) are totally different as in the
said case, with respect to the use of a path, which was
admittedly on the private land the villagers were only
claiming the right of the path with least restrictions.
17. In the case of Ramawati vs. State of U.P.,
reported in 2015 (36) RCR (Criminal) 191, the Hon’ble
Allahabd High Court in para 21 has held as follows:
“From the above discussuion, it is manifest that
revisionist has made construction over the area which was
not purchased by her and has encroached over the public
street. Findingof City Magistrate that public way has been
blocked is supported from the admitted maerial submitted
by the reivisonist in this Court. Exisence of public way is
not denied. Whether it is used by thousand persons or one
person would not make any difference and does not
change the nature of public way. Public property belongs
to entire public and everyone has right to access on every
inch of the public road. Nobody has right to encroach or
block public street, road or footpath. It is irrelevant that it
is used by limited persons or that even after encroachment
not much difficulty would be caused.”
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18. The Hon’ble Allahabad High Court in the
case of Dr. Mangesh Gupta (supra) has held that any
obstruction made by a person on public road or patri
land objected to only by one person does not mean
that it is only a source of nuisance to one person and
not the public at large. Para 16 of the said judgment
reads as under:
“It is not in dispute that the generator had been
installed outside the house of the petitioner, over vacant patri,
abutting public road. Any obstruction made by a person on a
public road or patri land though in the instant case, objected
to only by the second respondent, does not mean that it is
only a source of nuisance to the second respondent and not
the public at large. In the opinion of the court, it is another
matter that the law was set into motion by an individual, but
in view of the nature of obstruction and the resultant
nuisance, it is a public wrong. In Hari Ram vs. Jyoti Prasad,
2011 (2) SCC 682: 2011 (2) AWC 2006 (SC), the Surpeme
Court held that “an encroachment when made to a public
property like encroachment to public road, would be a graver
wrong, as such pre-judicially affects the number of people
and therefore a public wrong.”
19. Similarly, in the case of Smt. Ramawati
(supra), Budhwa vs. State of U.P. (supra), Karam
Hussain vs. State of U.P. (supra), the Hon’ble
Allahabad High Court has held that filing of a civil suit
ipso facto, does not bar the proceedings under Section
133 Cr.P.C. The revisional Court has also dealt with
the said aspect and on consideration of various
judgments has recorded a finding that mere pendency
of the civil suit does not bar the proceedings under
Section 133 Cr.P.C. This Court does not find any
perversity in the said finding.
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20. In view of the above, the Court is of the
considered view that the orders passed by the City
Magistrate, Dehradun and the learned Additional
Sessions Judge, IIIrd, Dehradun does not suffer from any
jurisdictional error, perversity or material irregularity.
The C-482 Petition lacks merits and the same is
dismissed.
(SUBHASH UPADHYAY, J.)
Dated: 27.04.2026
Kaushal