# Bhagwan Laxmi Narain Mandir Trust Revisionist v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 1455
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-20
- **Case number:** Criminal Revision No. 347 of 2001
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagwan-laxmi-narain-mandir-trust-revisionist-v-state-of-u-p-ors-51275
- **Pages:** 5

## Headnote

Law
-
Code
of
Criminal
Procedure,
1973
-
Section
133
-
1456 INDIAN LAW REPORTS ALLAHABAD SERIES
Revisionist
filed
application
u/s
133
Cr.P.C. asserting that disputed doublestoried building, over 125 years old, was
in dilapidated condition except for three
shops on ground floor - Stay order against
declaration of vacancy was continuing,
other proceedings pending before Rent
Control Authority and Small Causes Court
- By application, demolition was sought,
which
was
opposed
on
ground
of
pendency
of
multiple
proceedings
concerning building - Executive Magistrate
rejected application - Proceedings u/s 133
Cr.P.C. are summary in nature and meant
to ensure removal of nuisance and to
order
demolition
of
building
causing
nuisance in cases of imminent danger to
public - In instant case, various civil
litigation
regarding
building
already
pending between parties when application
u/s 133 Cr.P.C. filed - From conduct of
revisionist in filing revision in year 2001
and
thereafter
repetitively
seeking
adjournments and not trying to get
revision decided even after 23 years,
indicates there is no imminent danger of
building collapsing - Revisionist taken
recourse to proceedings u/s 133 Cr.P.C. to
bypass adjudication of rights in pending
civil proceedings - Revision lacks merit,
dismissed. (Para 6, 7, 11)

Revision dismissed. (E-13)

List of Cases cited:

## Text

2 All. Bhagwan Laxmi Narain Mandir Trust Vs. State of U.P. & Ors.
1455

33.10.Any document which is in
consonance with public documents, such
as matriculation certificate, could be
accepted by the court or the JJ Board
provided such public document is credible
and authentic as per the provisions of the
Evidence Act viz. Section 35 and other
provisions.

33.11.Ossification test cannot be the
sole criterion for age determination and a
mechanical view regarding the age of a
person cannot be adopted solely on the
basis of medical opinion by radiological
examination.
Such
evidence
is
not
conclusive evidence but only a very useful
guiding factor to be considered in the
absence of documents mentioned in Section
94(2) of the JJ Act, 2015.

14. When this court examines the
facts of the present case in the light of the
law laid down by the Hon'ble Supreme
Court in the aforesaid case, it appears that
the revisionist claims himself to be a
juvenile on the ground that the high school
certificate issued in the year 1997 mentions
his date of birth to be 09.07.1981. When
the high school certificate was available, as
per the provisions contained in Rule 12 (3)
(i), no further enquiry is permissible to
ascertain the date of birth of the juvenile.
The learned trial court has stated that as per
the statement of AW1 Ram Pal Chaurasiya,
witness is aged about 73 years, his younger
sister i.e. mother of the accused is about 78 years younger to him, from which it can
be assumed that presently the mother of the
accused would be aged about 65 years; the
witness has stated that his sister got married
when she was aged about 16-17 years and
her first daughter was born two years after
her marriage, in the year 1975. In case his
sister is presently aged about 65 years and
she got married in the age of 16-17 years or
at the most 20 years, the contention of the
birth of the daughter in the year 1975 is not
believable. In case the mother of the
accused got married in the year 16-17
years, it cannot be believed that she
delivered her first child in the year 1975
and from the aforesaid facts the age of the
revisionist cannot be below 18 years on the
date of the incident i.e. 11.04.1998.

15. This assessment made by learned
trial court for disbelieving the high school
certificate is not permissible in law.

16. Accordingly, the order dated
27.04.2011
passed
by
the
learned
Additional Sessions Judge, Court No.11,
Pratapgarh is not sustainable. The revision
is allowed. The learned trial court is
directed to decide the issue of juvenility of
the revisionist by treating his date of birth
mentioned in the high school certificate to
be correct and to proceed with the trial
accordingly.
----------
(2024) 2 ILRA 1455
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.02.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Revision No. 347 of 2001

Bhagwan Laxmi Narain Mandir Trust
 ...Revisionist
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Revisionist:
R.C. Mishra, Awadhesh Kumar

Counsel for the Respondent:
Govt. Advocate, S.K. Rastogi

Criminal
Law
-
Code
of
Criminal
Procedure,
1973
-
Section
133
-
1456 INDIAN LAW REPORTS ALLAHABAD SERIES
Revisionist
filed
application
u/s
133
Cr.P.C. asserting that disputed doublestoried building, over 125 years old, was
in dilapidated condition except for three
shops on ground floor - Stay order against
declaration of vacancy was continuing,
other proceedings pending before Rent
Control Authority and Small Causes Court
- By application, demolition was sought,
which
was
opposed
on
ground
of
pendency
of
multiple
proceedings
concerning building - Executive Magistrate
rejected application - Proceedings u/s 133
Cr.P.C. are summary in nature and meant
to ensure removal of nuisance and to
order
demolition
of
building
causing
nuisance in cases of imminent danger to
public - In instant case, various civil
litigation
regarding
building
already
pending between parties when application
u/s 133 Cr.P.C. filed - From conduct of
revisionist in filing revision in year 2001
and
thereafter
repetitively
seeking
adjournments and not trying to get
revision decided even after 23 years,
indicates there is no imminent danger of
building collapsing - Revisionist taken
recourse to proceedings u/s 133 Cr.P.C. to
bypass adjudication of rights in pending
civil proceedings - Revision lacks merit,
dismissed. (Para 6, 7, 11)

Revision dismissed. (E-13)

List of Cases cited:

1. Sukhlal Vs Brijbasi Lal: 1979 AWC 306

2. Sukh Lal Vs Dr. Brij Basi Lal, 1979 SCC
OnLine All 89 : 1979 All LJ 456, (Para 5)

3. Vasant Manga Nikumba Vs Baburao Bhikanna
Naidu, 1995 Supp (4) SCC 54, (Paras 3, 4)

(Delivered by Hon'ble Subhash Vidyarthi,
J.)

1. The case is a 23 years' old case
listed under the heading 'These cases shall
not be adjourned' yet a request for
adjournment of the case has been made by
the learned Counsel for the revisionist by
sending a printed slip which does not make
a mention of any reason for seeking
adjournment.

2. Earlier, the case was last listed on
01.02.2024 and the following order was
passed on that date: -

"The present revision has been
filed against the dismissal order of the
application of revisionist under Section 133
Cr.P.C. The interim order is of dated
6.6.2001.

The matter is quite old.

Learned
counsel
for
the
revisionist has moved the application for
adjournment of the case for the day.

AGA
has
submitted
that
approximately 23 years have gone by and
the matter might have been frustrated.

A perusal of the record indicates
that the parties have taken so many
adjournments on different dates. In
view
of above, it is directed that on the next date
of listing, no further adjournment shall be
granted and in absence of any party, the
Court may consider to decide the revision
on the basis of material available on
record.

List this case on 20.2.2024 in top
ten listed cases."

3. In these circumstances the request
for adjournment made in a casual manner
by merely sending a slip which does not
contain
any
reason
for
seeking
adjournment, is not reasonable and it
cannot be accepted.

4. Accordingly, the request for
adjournment of the case is turned down and
the court proceeds to examine the merits of
the case with the help of Smt. Parul Kant,
2 All. Bhagwan Laxmi Narain Mandir Trust Vs. State of U.P. & Ors.
1457
the learned A.G.A. appearing on behalf of
the State.

5. This is a revision under Section 397
read with Section 401 Cr.P.C. filed on
30.08.2001 challenging the validity of the
order dated 06.06.2001,passed by the
learned Additional Executive Magistrate,
Kheri closing proceedings under Section
133 Cr.P.C.

6. The revisionist had filed an
application under Section 133 Cr.P.C. on
07.05.1999 stating that the double storied
building in dispute had been constructed
more than 125 years prior to filing of the
application. The
building
was
in
a
dilapidated condition, except for three
shops situated on the ground floor of the
building. A stay order passed by this court
in Writ Petition No.2066 (M/S) of 1991
against the declaration of vacancy of the
building was continuing. Some other
proceedings were also pending before the
Rent Control Authority and in the Small
Causes Court. By means of the application
the revisionist had prayed for demolition of
the building. Objections were filed against
the
application
stating
that
several
proceedings were going on regarding the
building
which
was
sought
to
be
demolished by the revisionist.

7. The learned Additional Executive
Magistrate,
Kheri
has
rejected
the
application by means of an order dated
06.06.2001 wherein it is stated that a suit
under Section 92 C.P.C. regarding the
building in dispute was pending. The
opposite party had contended that the
building was maintained in a proper
condition and it was not under threat of
falling
down.
After
taking
into
consideration the judgment in the case of
Sukhlal Vs. Brijbasi Lal: 1979 AWC 306,
the
learned
Magistrate
came
to
a
conclusion that the proceedings under
Section 133 Cr.P.C. could not be continued
and
accordingly
the
application
was
rejected.

8. Section 133 of the Code provides
that: -

"133.
Conditional
order
for
removal of nuisance.- (1) Whenever a
District Magistrate or a Sub-Divisional
Magistrate
or
any
other
Executive
Magistrate specially empowered in this
behalf by the State Government, on
receiving the report of a police officer or
other information and on taking such
evidence (if any) as he thinks fit,
considers-

* * *

(d) that any building, tent or
structure, or any tree is in such a condition
that it is likely to fall and thereby cause
injury to persons living or carrying on
business in the neighbourhood or passing
by, and that in consequence the removal,
repair or support of such building, tent or
structure or the removal or support of such
tree, is necessary; or

* * *

such Magistrate may make a
conditional order requiring the person
causing such obstruction or nuisance, or
carrying on such trade or occupation, or
keeping any such goods or merchandise, or
owning, possessing or controlling such
building, tent, structure, substance, tank,
well
or
excavation,
or
owning
or
possessing such animal or tree, within a
time to be fixed in the order-

* * *

(iv) to remove, repair or support
such building, tent or structure, or to
remove or support such trees;".
1458 INDIAN LAW REPORTS ALLAHABAD SERIES

9. In Sukh Lal v. Dr. Brij Basi Lal,
1979 SCC OnLine All 89 : 1979 All LJ
456, this Court had held that: -

"5.... the summary procedure
prescribed under S. 133 Cr. P.C. is intended
to meet situations of emergency, wherein
taking of an immediate action is necessary.
If such a situation does not exist and if
constructions are long-standing, the proper
remedy for the parties is to enforce their
rights in a civil court and not to take
recourse to the speedy and summary
procedure prescribed under S. 133 Cr. P.C.
This view has also been expressed earlier
by a single Judge of this court in AIR 1965
All 215 Asharfi Lalv.Statein the following
words:-

"A proceeding under S. 133
should be taken in case of emergency where
the
public
shall
be
put
to
great
inconvenience
and
shall
suffer
an
irreparable injury if the encroachment or
nuisance is not removed at once by
adopting the summary procedure contained
in Ch. 10 and, therefore, ordinarily no
action under S. 133, can be taken where the
obstruction or nuisance has been in
existence for a long period. However, there
is no legal bar to seeking remedy under
Sec. 133 where there exists a genuine
emergency to have the encroachment or
nuisance removed. Such an action can be
taken even though the encroachment or
nuisance has been in existence for a
reasonably
long
period.
But
if
the
obstruction has been in existence for a long
period
without
any
change
in
circumstances
the
removal
of
such
obstruction cannot be said to be urgent and
the remedy must be sought in civil courts."

10. In Vasant Manga Nikumba v.
Baburao Bhikanna Naidu, 1995 Supp (4)
SCC 54, the Hon'ble Supreme Court held
that: -

"3. ...The object and public
purpose behind Section 133 is to prevent
public nuisance that if the Magistrate fails
to take immediate recourse to Section 133
irreparable damage would be done to the
public. The exercise of the power should be
one of judicious discretions objectively
exercised on pragmatic consideration of the
given
facts
and
circumstances
from
evidence on record. The proceedings under
Section 133 is not intended to settle private
disputes or a substitute to settle civil
disputes though the proceeding under
Section 133 is more in the nature of civil
proceedings in a summary nature.

4. A reading of Section 133 would
clearly
indicate
that
the
Executive
Magistrate has been empowered, on
receiving a report of the police officer or
other information and on taking such
evidence as he thinks fit that any building,
tent or structure is in such a condition that,
due to failure to remove, disrepair, or
without support it is likely to fall and
thereby cause injury to persons living or
carrying on business in the neighbourhood
or passing by and that in consequence he is
empowered to specify the time to remove,
repair or provide support to such building,
tent or structure or tree. Two options are
open to the Executive Magistrate on
considering whether structure, building etc.
is in such a dilapidated condition which
requires to be demolished immediately
which brooks no delay to avert danger to
the life and property of the neighbourhood
or passers-by unless they could be suitably
repaired or supported so as to avert danger
to the public or have it removed, etc. The
condition precedent to exercise the power
under Section 133 is the imminent danger
to
the
property
and
consequential
2 All. Diwakar Nath Tripathi Vs. State of U.P. & Anr.
1459
nuisance to the public. The removal of the
building is so urgently required as it is
likely to fall and cause injury to
persons living or carrying on business
in the neighbourhood or passers-by.
The nuisance is the concomitant act
resulting in danger to the life or
property due to likely collapse etc. The
dangerous condition of the building is
in praesenti but not in future. The
section is limited to injuries likely to be
caused to the passers-by or persons
living or carrying on business in the
neighbourhood. Each case has to be
considered in the light of the facts and
circumstances obtained in each case."

11. The proceedings under Section
133 Cr.P.C. are summary in nature and
primarily meant to ensure removal of
nuisance and to order demolition of a
building causing nuisance in cases of
imminent danger to the public. In the
present
case
various
civil
litigation
regarding the building in question were
already pending between the parties when
the application under Section 133 Cr.P.C.
was filed. From the conduct of the
revisionist in filing the revision in the year
2001 and thereafter repetitively seeking
adjournments of the revision and not trying
to get the revision decided even after 23
years, indicates that there is no imminent
danger of the building collapsing. It
appears that the revisionist had taken
recourse to the proceedings under Section
133 Cr.P.C. to bypass adjudication of rights
in the pending civil proceedings.

12. In these circumstances, there
appears to be no illegality in the impugned
order
dated
06.06.2001
declining
to
continue the proceedings under Section 133
Cr.P.C. The revision lacks merit and the
same is accordingly dismissed.
----------
(2024) 2 ILRA 1459
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.02.2024

BEFORE

THE HON'BLE JYOTSNA SHARMA, J.

Crl. Revision Defective No. 576 of 2023

Diwakar Nath Tripathi ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Sri Ramesh Chandra Dwivedi

Counsel for the Respondent:
Sri M.C. Chaturvedi, Sr. Advocate/AAG, Sri A.K.
Sand, GA, Sri Ajay Singh, AGA-I, Sri Neeraj Kant
Verma AGA, Sri Rajeev Lochan Shukla

Criminal Law - Limitation Act, 1963 -
Section 5 - Condonation of delay -
Revision, presented on 12.04.2023, was
reported
time-barred
by
318
days
(limitation up to 29.05.2022) - A delay
condonation application dated 11.04.2023
with supporting affidavit was filed - Upon
filing before J.R. (J) on 21.04.2023, delay
was noted as 327 days - Held, revisionist,
claims himself as social worker and RTI
activist in his application u/s 156(3)
Cr.P.C. and he cannot be treated as casual,
non-vigilant - Neither delay condonation
application nor its supporting affidavit
discloses
any
concrete
ground
or
substantiated reason for delay; averments
are vague - Revisionist failed to show
sufficient cause for condonation of delay -
Delay
condonation
application
must
disclose
proper
and
substantiated
grounds, which are absent here - Dispute
being filing of application challenging
impugned
order,
withdrawal
of
his
application u/s 482 Cr.P.C. for seeking
remedy, delayed filing of present revision
without disclosing date of applying for
certified
copy
and
unsubstantiated