Vishambhar Singh Negi And Others vs State Of Uttarakhand And Others

Subhash Upadhyay, J

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 legal heirs.

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.

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 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.

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 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.

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).

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 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.

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 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.

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

Heard learned counsel for the parties and perused the record.

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 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."

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:

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:

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:

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.

1-Ramchandra Malojirao Bhonsale vs Rasikbhai Govardhanbhai -2001(3) Crimes 379

2-State of Mysore vs Venkataraman Manjunath Hegde-1972 0 Supreme 195

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.

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 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."

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.

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 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.

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."

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."

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.

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.