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2024 Supreme(All) 1081
IN THE HIGH COURT OF ALLAHABAD
HON'BLE SHAMIM AHMED, J.
Madhav Raj And Another – Appellants
Versus
State Of U.P. Thru. Prin. Secy. Home Deptt. Lko And Others – Respondent
Criminal Misc. Writ Petition No.5099 of 2024
Decided on : 19-07-2024
Advocate Appeared:
For the Petitioner: Amitesh Pratap Singh, Abhijeet P.Singh Chauhan, Naveen Kumar Singh, Shesh Ram Yadav
For the Respondent: G.A., Purnima Mayank
IMPORTANT POINT
The court affirmed the authority of the Sub Divisional Magistrate under Section 133 Cr.P.C. to order the removal of encroachments obstructing public ways, emphasizing the necessity of evidence in such proceedings.
Headnote:
CRIMINAL PROCEDURE - ENCROACHMENT REMOVAL - Cr.P.C. Section 133 - The court discussed Section 133 of the Criminal Procedure Code, which allows for the removal of encroachments that obstruct public ways. The court interpreted this section as providing the authority for the Sub Divisional Magistrate to act upon police reports regarding illegal encroachments. The court upheld the decisions made by the lower courts, emphasizing the importance of evidence presented and the legal process followed in reaching the conclusion that the petitioners had indeed encroached upon public land.
Fact of the Case:
The petitioners sought to quash orders from the Sub Divisional Magistrate and the Additional Sessions Judge regarding the removal of alleged illegal encroachments on a public road, following a complaint from the respondents.
Finding of the Court:
The court found that the orders passed by the Sub Divisional Magistrate and the Additional Sessions Judge were justified, as they were based on police reports and evidence indicating that the petitioners had encroached upon public land.
Issues: Whether the orders for removal of encroachment were justified and whether the petitioners had a valid claim against the findings of the lower courts.
Ratio Decidendi: The court held that the Sub Divisional Magistrate acted within the scope of Section 133 Cr.P.C. in directing the removal of encroachments, and the evidence supported the conclusion that the petitioners had indeed encroached upon a public road.
Final Decision: The writ petition was dismissed, affirming the legality of the orders passed by the lower courts.
JUDGMENT :
Hon'ble Shamim Ahmed, J.
1. Heard Shri Amitesh Pratap Singh, learned Counsel for the petitioners, Ms. Punima Mayank, learned Counsel for respondent Nos.4 to 8, Shri Rajeev Kumar Verma, learned A.G.A. for the State-respondent Nos.1 to 3 and perused the material placed on record.
2. The present petition has been filed on behalf of the petitioners seeking quashing of the order dated 10.05.2024 passed by respondent No.2 i.e. the Additional Sessions Judge, Court No.4/Special Judge (E.C. Act), District-Gonda in Criminal Revision No.430/2022 as well as order dated 03.10.2022, which was passed by the respondent No.3 i.e. the Sub Divisional Magistrate, Tehsil-Colonelganj, District-Gonda in a proceeding under Section 133 Cr.P.C.
3. Learned Counsel for the petitioners submits that the respondent Nos.4 to 8 filed an application under Section 133 Cr.P.C. before the Sub Divisional Magistrate, Colonelganj, District-Gonda i.e. respondent No.3 to remove the alleged illegal encroachment done by the petitioners. Thereafter, the respondent No.3 called police report from Police Station- Kotwali Dehat, District-Gonda and the concerned police station submitted its report on 03.12.2021 before the respondent No.3 stating therein that the petitioners have encroached a public way and the pathway of the respondent Nos.4 to 8 but in naksha najri of the report it is clearly shown that the unpaved road is provided from the other side, which is clearly visibly in the naksha najri. He further submits that the respondent Nos.4 to 8 committed forgery and produced a reply on behalf of the petitioners by some other person and the respondent Nos.4 to 8 are trying to use this road by adopting illegal methods.
4. Learned Counsel for the petitioners further submits that the respondent No.3 passed the impugned order dated 03.10.2022 and directed the concerned police station to remove the illegal encroachment done by the petitioners without considering the material available on record and also without considering the legal and factual aspects of the case. He further submits that being aggrieved by the order dated 03.10.2022 passed by respondent No.3, the petitioners preferred a criminal revision bearing Criminal Revision No.430 of 2022 before the Additional Sessions Judge, Court No.4/Special Judge (E.C. Act), District-Gonda i.e. the respondent No.2. He further submits that the respondent No.2 also erred in law and dismissed the criminal revision filed by the petitioners without considering the legal and factual aspects of the case, thus, he submits that the present petition may be allowed and both the impugned orders may be quashed by this Court.
5. On the other hand, learned Counsel for respondent Nos.4 to 8 and learned A.G.A for the State-respondent Nos.1 to 3 vehemently opposed the submissions advanced by learned Counsel for the petitioners and submits that the proceedings under Section 133 Cr.P.C. have been initiated by the respondent No.3 on the police report submitted by the concerned police station and the respondent No.3 after considering the police report dated 03.12.2021 and after going through the entire evidence available on record passed the impugned order dated 03.10.2022 and directed the concerned police station to remove the illegal encroachment done by the petitioners on the public road. They further submit that instead of removing the illegal encroachment, the petitioners approached the respondent No.2 by way of filing a criminal revision and the respondent No.2 also dismissed the criminal revision filed by the petitioners vide order dated 10.05.2024 after considering the factual and legal aspects of the case. They further submit that the petitioners have illegally encroached the public road and are regularly creating obstruction over the said road, which is creating problem to the respondent Nos.4 to 8 as well as to the general public, thus, they submits that the order dated 03.10.2022 and 10.05.2024 passed by respondent No.3 and respondent No.2
