Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Online)(UK) 1098

HIGH COURT OF UTTARAKHAND
Subhash Upadhyay, J
VISHAMBHER SINGH NEGI – Appellant
Versus
STATE OF UTTARAKHAND – Respondent
C482 230 / 2021

Advocates:
For the Appellants/Petitioners: Ramji Srivastava, V.S. Dhapola, Vikram Singh
For the Respondents: Amit Bhatt, Kuldeep Rawal, Lalit Sharma, Rajesh Pandey, Jagat Singh Mehra, Devika Tiwari

Proceedings under Section 133 Cr.P.C. for removal of public nuisance are independent of pending civil suits and not barred unless a civil court has specifically adjudicated possession or rights. Encroachment on a public pathway constitutes public nuisance regardless of number of users.

Headnote:(A) Criminal Procedure Code, 1973 - Sections 133 and 482 - Public nuisance - Removal of encroachment on public pathway - Powers of Executive Magistrate - Proceedings under Section 133 Cr.P.C. are not barred by mere pendency of a civil suit unless the civil court has passed a specific order regarding possession or rights - Revisional jurisdiction under Section 482 Cr.P.C. is limited to jurisdictional error, perversity, or material irregularity - No re-appreciation of evidence. (Paras 14, 15, 17, 19)

(B) Public nuisance - Encroachment on public pathway - Installation of gate - Even if used by few persons, it remains public property and obstruction is a public wrong - Reliance on Ramawati vs. State of U.P. (2015) and Hari Ram vs. Jyoti Prakash (2011) - The number of users does not change the nature of the public way. (Paras 17, 18)

(C) Civil suit - Pendency - Effect on criminal proceedings - A specific order by civil court regarding possession or rights would bar Section 133 proceedings; otherwise, both can continue - Reliance on Budhwa vs. State of U.P. (2006) and Suresh Prakash vs. Krishna Swarup (1976). (Para 19)

Facts of the case:
An application under Section 133 Cr.P.C. was filed by a private respondent alleging that the applicant had blocked a 15 ft wide public pathway by installing a gate and parking vehicles, creating public nuisance. The City Magistrate, after spot inspection and hearing, ordered removal of encroachment. The applicant’s criminal revision was dismissed by the Additional Sessions Judge. The applicant then filed a petition under Section 482 Cr.P.C. contending that a civil suit was pending regarding the same pathway and that the path was a dead end used only by a few persons. The High Court examined records including sale deeds and found the pathway to be public and the gate to constitute public nuisance. (Paras 2, 3, 11, 13)

Findings of Court:
The court observed that the orders of the City Magistrate and the Additional Sessions Judge were based on cogent evidence, including sale deeds showing the pathway as public. Mere pendency of a civil suit does not bar proceedings under Section 133 Cr.P.C. unless a specific order on possession exists. Installation of a gate on a public pathway is a public nuisance regardless of the number of users. The revisional court correctly declined to re-appreciate evidence. No jurisdictional error or perversity was found. (Paras 13, 17, 19, 20)

Issues: (i) Whether the pathway in question is a public pathway? (ii) Whether pendency of a civil suit bars proceedings under Section 133 Cr.P.C.? (iii) Whether the impugned orders suffer from any legal infirmity warranting interference under Section 482 Cr.P.C.?

Ratio Decidendi: The court held that the pathway was public as per sale deeds and official reports; obstruction by a gate amounts to public nuisance; Section 133 Cr.P.C. proceedings are independent of civil suits unless a specific civil order on possession exists; the revisional court’s limited scope does not allow re-appreciation of evidence; the orders were legal and proper.

Result: Criminal Misc. Application dismissed.

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 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 7^th 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.

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 3^rd 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

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2026 Supreme(Online)(UK) 1098

HIGH COURT OF UTTARAKHANDSubhash Upadhyay, JVISHAMBHER SINGH NEGI – AppellantVersusSTATE OF UTTARAKHAND – RespondentC482 230 / 2021

Proceedings under Section 133 Cr.P.C. for removal of public nuisance are independent of pending civil suits and not barred unless a civil court has specifically adjudicated possession or rights. Encroachment on a public pathway constitutes public nuisance regardless of number of users.

Cases Referred (2)

HIGH COURT OF UTTARAKHAND
Subhash Upadhyay, J
VISHAMBHER SINGH NEGI – Appellant
Versus
STATE OF UTTARAKHAND – Respondent
C482 230 / 2021