Allahabad High Court
Sant Pal Singh & Another vs State Of U.P. & Others on 4 September, 2017
Author: Harsh Kumar
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 53 Case :- CRIMINAL REVISION No. - 507 of 2012 Revisionist :- Sant Pal Singh & Another Opposite Party :- State Of U.P. & Others Counsel for Revisionist :- Brajesh Kumar Gautam,A.P. Singh Counsel for Opposite Party :- Govt. Advocate,Manas Bhargava Hon'ble Harsh Kumar,J.
Heard Sri A.P. Singh, learned counsel for the revisionists, Sri Manas Bhargava, learned counsel for opposite party nos.2 to 5, learned AGA for the State and perused the record.
The present criminal revision has been filed against the order dated 25.11.2011 passed by Additional Sessions Judge, Court No.1, Siddharth Nagar allowing the Criminal Revision No.79 of 2009 of opposite party nos.2 to 5, by setting aside the order dated 28.5.2008 passed by S.D.M/Up-Zila Magistrate, Etwa, District Siddharth Nagar in Case No.01 of 2001, under section 147 Cr.P.C. and remitting the case back to S.D.M. for afresh disposal.
Learned counsel for the revisionists contended that the impugned order remanding the matter to Magistrate for afresh disposal after affording reasonable opportunity of hearing to the parties in view of the observations made in the order and in accordance with law, is wrong on facts and law; that the dispute is in respect of a rasta, which is being used by the revisionists from the times of their ancestors and since it is the only rasta available for ingress and egress from and to their residential house and is private rasta, the revisionists exercise easementary right of necessity over it and it comes within the definition of land under section 145 Cr.P.C. and so the provisions of section 147 Cr.P.C. are applicable to the case; that only in case of public rasta, the provisions of section 133 Cr.P.C. will be applicable; that opposite party nos.2 to 5 had filed Criminal Revision No.120 of 2006 against the earlier order dated 31.3.2006 of the S.D.M. on the ground of maintainability of proceedings under section 147 Cr.P.C., which was dismissed vide order dated 17.5.2006 at Annexure No.3; that the same issue was again raised in the revision against final order of the Magistrate dated 28.5.2008 in which the learned Sessions Judge has acted wrongly and illegally in remanding the case in view of the law laid down by the Apex Court in the case of AIR 2000 SC 1504 Amresh Tiwari Vs. Lalta Prasad Dubey and another as well as AIR 1985 SC 472 Ram Sumer Puri Mahant Vs. State of U.P. and others; that the civil suit is pending between the parties, as Civil Suit No.71 of 2003, which has been filed by revisionists subsequently and since the proceedings under section 147 Cr.P.C. were initiated before the institution of Civil Suit, the Magistrate had full jurisdiction to proceed with the case; that the revision is liable to be allowed and impugned order is liable to be set aside.
Per contra, learned AGA and learned counsel for opposite party nos.2 to 5 supported the impugned order and submitted that as per averments made in para 7 of the plaint of Civil Suit No.71 of 2003 filed by revisionist, (copy of plaint at Annexure No.CA.1), the resolution was passed by Gram Samaj for laying Khadanja over the rasta in question and when the Khadanja was being laid down by the Gram Panchayat, the opposite party nos.2 to 5 allegedly forcibly dismantled the Khadanja in the night of 7/8.10.2001; that the civil suit for same relief has been filed by revisionists and the right regarding alleged rasta, may be decided only by the civil courts, which Court also has jurisdiction to issue ad interim mandatory injunction to remove the unauthorized constructions/obstructions, if any, raised pending suit.
Upon hearing learned counsel for the parties and perusal of record, I find that in proceedings under Section 147 Cr.P.C., the S.D.M., Etwa District Siddharth Nagar vide order dated 28.5.2008 had directed the opposite party nos.2 to 5 to remove the obstructions and wall over the 9 feet 6 inch wide rasta of the revisionists, till decree in their favour from competent civil court. Feeling aggrieved the opposite party nos.2 to 5 filed Criminal Revision No.79 of 2009 before the Sessions Judge, Siddharth Nagar, which has been decided by impugned order allowing the revision and remitting the matter back to S.D.M. for disposal in view of the observations made in the body of judgment and in accordance with law. Hence, the second party has come in revision before this Court.
It is not disputed that the revisionists have also filed Civil Suit No.71 of 2003 against the opposite party nos. 2 to 5 for obtaining a decree of permanent prohibitory injunction, restraining them from raising any wall or putting any obstructions over the disputed rasta in question shown by letters A B C D in plaint map, which is still pending between the parties. It is not disputed that the civil suit has been filed by none other than the revisionists, subsequent to the initiation of proceedings under Section 147 Cr.P.C. in which on their application, on 5.2.2003 the civil court has directed both the parties to maintain status quo. It is also not disputed that civil suit has been filed with respect to the rasta in question and the order for removal of obstructions has been passed by S.D.M., Etwa, Siddharth Nagar on 28.5.2008 after more than five years from the date of order of status quo passed by the civil courts. The above order dated 28.5.2008 has been set-aside by the Additional Sessions Judge in Criminal Revision No.79 of 2009 by the impugned order. I find force in the argument of opposite parties that the civil court has ample jurisdiction to issue ad interim mandatory injunction for removal of unauthorized constructions/obstructions if any raised pending suit when the matter is pending before the competent civil court, who is competent to pass whatever order it deems fit in the interest of justice, the passing of any order regarding the subject matter of civil suit, in proceedings under section 147 Cr.P.C. does not appears appropriate. In the circumstances, the Additional Sessions Judge has not committed any mistake in remitting the case back to the S.D.M. for disposal in accordance with law.
In view of the material on record as well as the undisputed facts, I find that the civil suit has been filed by revisionist, though after initiation of proceedings under section 147 Cr.P.C., but long before passing of the order by S.D.M. In view of the facts and circumstances on record and allegations of laying of Khadanja over the disputed rasta by Gaon Sabha and its alleged removal by opposite party nos.2 to 5, the nature of rasta is to be looked into by civil court.
In view of the discussions made above without commenting on merits of the case, I have come to the conclusion that learned counsel for the revisionists has failed to show any illegality, irregularity, impropriety or incorrectness in the impugned order and there is no sufficient ground for interfering with or for setting it aside the impugned order. The revision has got no force and is liable to be dismissed.
The revision is dismissed, accordingly.
Interim order, if any, stands vacated.
Let a copy of this order be sent to court below for necessary action.
Order Date :- 4.9.2017 Tamang/Kpy