# Indu Tandon v. State of U.P. & Ors

- **Citation:** (2026) 4 ILRA 931
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-02
- **Case number:** Application U/S 482. No. 10324 of 2025
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/indu-tandon-v-state-of-u-p-ors-54417
- **Pages:** 8

## Text

4 All. Indu Tandon Vs. State of U.P. & Ors.
931
initiation/registration of the case as well as the materials collected in the course of
investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period
of time. It is in the background of such circumstances the registration of multiple FIRs assumes
importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge
as alleged."

24. Upon a cumulative consideration of the allegations in the complaint, the evidence
placed on record and the attending circumstances enumerated above, prima facie, appears that they
do not constitute the necessary ingredients of offence alleged against the applicants and the reliable
and unimpeachable material demonstrably displaces the factual basis of the accusations and the
prosecution is unable to effectively counter the same, the Court would be justified in invoking its
inherent jurisdiction under Section 482 Cr.P.C. to prevent injustice as such an approach not only
accords justice to the accused but also obviates the wastage of precious judicial time on
proceedings which, on the admitted material, do not hold a reasonable prospect of culminating in
conviction. Therefore, I am of the considered opinion that the impugned proceedings cannot be
sustained in law and the same deserve to be quashed.

25. Application is accordingly allowed and the entire proceedings of Complaint Case
No.53786 of 2022, Nazish Fatima Vs. Mohd. Abbas and others, Police Station Hazratganj, District
Lucknow and the summoning order dated 19.11.2022 passed by the Additional Chief Judicial
Magistrate-IV, Lucknow, are hereby quashed qua the applicants.
----------
(2026) 4 ILRA 931
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.04.2026

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Application U/S 482. No. 10324 of 2025

Indu Tandon ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Issue for consideration
The dispute concerned possession of a shop situated at Mohalla Golaganj, Gonda. The applicant sought
attachment of the shop u/s 164/165 BNSS alleging attempted encroachment, whereas opposite parties
claimed tenancy and actual possession of the premises.

Headnotes
A. Bhartiya Nagrik Suraksha Sanhita,2023-Section 164 and 165-Dispute regarding possession of
immovable property-Attachment of shop by Magistrate-Revisional Court setting aside
attachment order-Validity-Opposite parties claiming tenancy and actual possession-Police report
indicating possession with opposite parties-Proceedings u/s 164/165 BNSS are maintainable
only where there exists a genuine dispute regarding actual possession likely to result in breach
of peace-Where possession is admitted to be with one party, such party cannot be dispossessed
932 INDIAN LAW REPORTS ALLAHABAD SERIES
through summary proceedings under BNSS-Remedy of landlord lies in appropriate civil
proceedings for eviction-The Revisional Court rightly quashed the attachment order passed by
the City Magistrate-Order affirmed-Application rejected.(Para 23,24)
Held
The court held that proceedings u/s 164/165 BNSS are intended to prevent breach of peace and not to
adjudicate title or tenancy rights. Jurisdiction u/s 164/165 BNSS arises only when there is a bona fide dispute
regarding actual possession of immovable property. A person in admitted or established possession cannot be
dispossessed through summary preventive proceedings. Landlord-tenant disputes and questions of eviction
must be resolved through appropriate civil proceedings. (E-6)

Case law Cited
Pawan Singhania Vs State of U.P. (2023) SCC OnLine All 4579, Mahabirji Mandir Committee Vs State of U.P.
(1992) SCC OnLine All 1154: 1993 Cri LJ 2132, Virendra Kumar Vs State of U.P (2002) SCC OnLine All 1606:
2003 Cri LJ 2709-referred to.

List of Acts
Bhartiya Nagrik Suraksha Sanhita, 2023.

List of Keywords
Dispute as to Possession, Attachment of Property, Breach of Peace, Executive Magistrate, Tenant in
Possession, Landlord-Tenant Dispute, Summary proceedings, Preventive jurisdiction, Civil remedy, Shop
Premises Police Report, Section 164/165 BNSS.

Case Arising from
CRIMINAL JURISDICTION: APPLICATION U/S 482 No.- 10324 OF 2025 02.04.2026
Indu Tandon Vs. State of U.P. Thru. Prin Secy. Home Lko & 2 Ors
From the judgment and order dated 02.04.2026 of the High Court of judicature at Allahabad.

Appearances for Parties
Advs. for Applicant(s)
Ashish Kumar Singh
Advs. for Opposite Party(s)
G.A., Priya Bharti, Saima Khan

(Delivered by Hon'ble Brij Raj Singh, J.)

1. Heard. Ms. Sudiksha Singh, holding brief of Sri Ashish Kumar Singh, learned counsel for
applicant; Ms. Tanvi Jain, learned AGA-I for State and Ms. Saima Khan, learned counsel for
opposite party nos.2 and 3.

2. By means of present application, applicant has challenged the order dated 01.11.2025
passed by Additional Sessions Judge, Room No.1, Gonda (Revisional Court) in Criminal Revision
No. 580 of 2024 (Dileep Soni and Another Vs. State of U.P. and Another), under Sections 438/440
of Bhartiya Nagrik Suraksha Sanhita (in short "BNSS") filed by the opposite party nos. 2 and 3 by
which the Revisional Court set aside the order dated 24.10.2024 passed by City Magistrate, Gonda,
under Section 164 of BNSS.

3. It has been submitted that applicant is old and widow lady whose son live out of town
and house of applicant wherein the shop in question is situated at Mohalla Golaganj is registered on
Form No.45 of Nagar Palika Parishad, Gonda in the name of Narain Kishore Tandon (husband of
4 All. Indu Tandon Vs. State of U.P. & Ors.
933
applicant) since 1946 and after the death of husband of applicant, his legal heir i.e. applicant and
her son Bheeshm Tandon became owner and in possession of the house.

4. It has been further submitted that a temple was also constructed by husband of applicant
in the premises of house and opposite party no.2, knowing the fact that applicant is old, ill and
weak lady, is illegally trying to encroach a room for shop, therefore, the applicant gave an
application to District Magistrate/City Magistrate, Gonda on 25.05.2024.

5. It has been further submitted that the police of Kotwali Nagar, District Gonda has
submitted a report on 03.08.2024/05.08.2024, under Section 164 BNSS stating therein that due to
dispute regarding possession, the situation was under tension and some unpleasant incident may
took place between the parties and prayed for the necessary action and recommended to attach the
property under Section 165 BNSS.

6. It has been further submitted that both parties appeared before the City Magistrate,
Gonda and on 05.09.2024, applicant gave an application under Section 165(1) BNSS stating therein
that opposite party nos.2 and 3 are trying to possess the shop of applicant and prayed therein to
attach the shop and appoint the receiver.

7. It has been further submitted that opposite party no.2 also appeared before the City
Magistrate, Gonda and on 19.09.2024 filed an objection on false and frivolous fact praying therein
to quash the proceedings under Section 164 BNSS.

8. It has been further submitted that the City Magistrate has recorded finding that in Civil
Suit No. 1459 of 2024 preferred by opposite party no.2, the description of the shop is different from
the description of the shop described in the objection dated 19.09.2024 filed by opposite party no.2
and the map mentioned in police challani report and mentioned in the suit is not same and after
giving proper opportunity of hearing to all parties, Magistrate has attached the shop in question
vide order dated 24.10.2024.

9. It has been further submitted that opposite party nos.2 and 3 preferred a revision before
the Revisional Court on 28.10.2024 on false and frivolous fact stating therein in para 12 of revision
that the order has been passed ex-parte whereas the order has been passed after giving opportunity
to both the parties.

10. It has been further submitted that applicant appeared before Revisional Court and filed
her objection stating that no rent agreement has been executed by applicant and opposite party
nos.2 and 3. The applicant also mentioned in para 5 of the objection that opposite party no.2 after
drinking wine with his associates and friends abuses the applicant, taking the advantage of illness,
oldness and weakness of applicant.

11. It has been further submitted that opposite party no.2 filed a civil suit for permanent
injunction before Civil Judge (Junior Division)-I, Gonda on the false and frivolous fact on
01.07.2024 which was registered as Civil Suit No.1459 of 2024.
934 INDIAN LAW REPORTS ALLAHABAD SERIES
12. It has been further submitted that applicant appeared in the suit and filed her written
statement denying all the wrong facts claimed by opposite party no.2, on 03.10.2025.

13. She has placed reliance on the judgment of this Court passed in Pawan Singhania v.
State of U.P., reported in 2023 SCC OnLine All 4579. Relevant para is extracted herein-under:-

 "6. Considering the rival contention of the parties, I am of the view that impugned order
was passed mainly on the ground that civil suit is pending between the parties without looking to
the nature of leave of civil suit and without even going into the question that civil suit is not
regarding the possession but merely to protect the possession till the process of law adopted and
from perusal of plaint of the suit No. 709 of 2009, it appears that there is no title dispute between
the parties and private respondents did not claim ownership or possession on the basis of any
right, therefore, there is no occasion to drop the proceeding under Section 145 Cr. P.C. when there
is purely question of possession is pending before the Magistrate even in the judgement relied upon
by the counsel for the revisionist. The Apex Court clearly observed that question of possession is
involved then the Magistrate is empowered to take cognizance under Section 145 Cr. P.C. Even in
the judgement of Full Bench of this court reported AIR 1959 All 141, Ganga Bux Singh v. Sukhdin
has settled the issue. "It has been held that the proceedings under Sections 145 Cr. P.C. are only in
the interest of the maintenance of peace and not in the interest of the preservation of the rights of
any party. It was further held that the proceedings under Section 145 of the Code of Criminal
Procedure are materially different from the proceedings in a proper suit. From the nature of the
provisions it is clear that the Magistrate has been given this power primarily to preserve peace.
The individual rights are affected only incidentally. The nature of the enquiry is quasi civil. It is an
incursion by the criminal court in the jurisdiction of the civil court. It is, therefore, necessary that
this incursion should be carefully circumscribed to the extend absolutely necessary discharging the
function laid on the Magistrate of preserving the peace. The provisions of Section 145, Code of
Criminal Procedure make that ample clear.

 The Magistrate does not enquire into the merits of the claims of the parties or even their
right to possess the subject of the dispute. He is only concerned with the question as to who was in
actual physical possession on the relevant date. This also indicates that the starting point of the
proceedings) must be the date when he was satisfied that an apprehension of a breach of the peace
existed and not even he received the first information." 7. The Apex Court clearly held that
proceeding under Section 145 Cr. P.C. cannot be dropped merely on the ground that one party had
approached civil court not with regard to title or right to possession therefore in view of law and
fact, the impugned order dated 28.04.2010 passed by the Additional Sessions Judge, Gorakhpur in
Criminal Revision No. 217 of 2010 is absolutely erroneous and passed on non-application of mind,
therefore, the impugned order is liable to be quashed and it is accordingly quashed.

14. Referring to para 6, it has been submitted that even if civil suit is pending between the
parties without looking to the nature of leave of civil suit and without even going into the question
that civil suit is not regarding the possession but merely to protect the possession till the process of
law adopted, the Revisional Court has not applied its mind and the proceedings under Section 164
BNSS cannot be dropped merely on the ground that one party has approached the civil Court not
4 All. Indu Tandon Vs. State of U.P. & Ors.
935
with regard to title or right of the possession, therefore, in view of law laid and fact, the proceeding
was illegal.

15. On the other hand, Ms. Saima Khan, learned counsel for opposite party nos.2 and 3 has
submitted that opposite party no.2 is running shop and he has also filed electricity bill. The
predecessor of applicant namely Narain Kishore Tandon (husband of applicant) was land lord of
shop of question which is situated in Mohalla Golaganj. Answering opposite party no.2 was tenant
of late Narain Kishore Tandon.

16. Ms. Saima Khan, learned counsel has invited attention of this Court towards the police
report wherein it is mentioned that there is shop running by answering opposite party no.2 and
applicant wants to evict him but opposite party no.2 does not want to evict the shop.

17. It has been submitted that once the possession of shop is admitted, it is open for
applicant to file suit for eviction but proceeding under Sections 164/165 BNSS cannot be allowed.
Answering opposite party nos.2 and 3 are getting their livelihood by running a jewellery shop and
their possession should not be disturbed.

18. To buttress her arguments, she has placed reliance on following judgments of this
Court:

 i- Mahabirji Mandir Committee v. State of U.P., reported in 1992 SCC OnLine All
1154 : 1993 Cri LJ 2132

 ii- Virendra Kumar v. State of U.P., reported in 2002 SCC OnLine All 1606 : 2003
Cri LJ 2709

19. Emphasis has been placed on paragraph 9 of the judgment passed in Virendra Kumar
(Supra), is extracted herein-under :-

 "9. The fact that the petitioner was all along in possession and never vacated disputed
premises gains support from the Commission's report. As would appear from his report, he found
certain documents belonging to the petitioner in the disputed shop. No explanation has been
offered by respondent No. 3 as to how those papers could be found in the said premises when
according to him, the petitioner having entered into a compromise left the premises in his
possession. To my mind the petitioner continued to possess the said premises and used the same as
shop till it was attached and receiver was appointed. In my opinion, it is a fit case where the Court
in order to do justice to the petitioner should come to his rescue and put him back in possession of
his tenanted premises in question."

20. Paragraphs 5 and 6 of the judgment passed in Mahabirji Mandir Committee (Supra),
is extracted herein-under :-

 "5. In order to appreciate the legal aspect of the case the provisions of S. 145, Cr. P.C.
are necessary to be quoted. It is needless to say that a duty is cast on the Executive Magistrate to
936 INDIAN LAW REPORTS ALLAHABAD SERIES
act in emergent situation and to exercise in public interest the power to prevent breach of the peace
under the provisions of the Code, like Ss. 107/116, 144 and 145, Cr. P.C. No doubt all the
proceedings including the proceedings under S. 145, Cr. P.C. are summary in nature but in every
case the Magistrate has to act in a judicial manner and exercise his power strictly within the four
corners of the Code. In this case it is the duty of the Magistrate to decide first the ambit of his
jurisdiction and thereafter take a decision as to what provision in the particular facts and
circumstances of the case can be invoked by him to preserve the peace and public tranquillity. The
relevant provisions of S. 145, Cr. P.C. are as follows:?

 "145. Procedure where dispute concerning land or water is likely to cause breach of
peace.?

 (1) Wherever an Executive Magistrate is satisfied from a report of a police officer or
upon other information that a dispute likely to cause a breach of the peace exists concerning any
land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in
writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such
dispute to attend his Court in person or by pleader, on a specified date and time, and to put in
written statements of their respective claims as respects the fact of actual possession of the subject
of dispute.

 (2) to (3)

 (4) The Magistrate shall then, without reference to the merits or the claims of any of the
parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties,
receive all such evidence as may be produced by them, take such further evid ence, if any, as he
thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of
the order made by him, under sub-sec. (1), in possession of the subject of dispute.

 Provided that if it appears to the Magistrate that any party has been forcibly and
wrongfully dispossessed within two months next before the date on which the report of a police
officer or other information was received by the Magistrate, or after that date and before the date
of his order under subsection (1), he may treat the party so dispossessed as if that party had been
in possession on the date of his order under sub-section(1).

 (5) Nothing in this section shall preclude any party so required to attend, or any other
person interested, from showing that no such dispute as aforesaid exists or has existed, and in such
case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed,
but, subject to such cancellation, the order of the Magistrate under sub-sec. (1) shall be final.

 (6)(a) If the Magistrate decides that one of the parties was, or should under the proviso to
sub-sec. (4) be treated as being in such possession of the said subject, he shall issue an order
declaring such party to be entitled to possession thereof until evicted therefrom in due course of
law, and forbidding all disturbance of such possession until such eviction and when he proceeds
under the proviso to sub-sec. (4), may restore to possession the party forcibly and wrongfully
dispossed.
4 All. Indu Tandon Vs. State of U.P. & Ors.
937
 (b) the order made under this sub-section shall be served and published in the manner
laid down in sub-section (3).

 (7), (8), (9) and (10)" 6. From the bare perusal of S. 145. Cr. PC. it is clear that the
jurisdiction to initiate proceedings under S. 145, Cr. P.C. arises in case only when there is a
dispute about actual possession of any immoveable property which is likely to lead to the breach of
the peace. In my opinion for initiation of proceedings under S. 145, Cr. P.C. it is necessary that
both the parties must disagree on the question of actual possession or claim possession within two
months of the preliminary order. On the other hand in my opinion proceedings under S. 145, Cr.
P.C. cannot be initiated e.g. if one party admits the other party's possession on the property in
dispute then in these circumstances the Magistrate should not initiate proceedings under S. 145,
Cr. P.C. the question of possession is not in dispute but the Magistrate finds that there is danger of
the breach of the peace then the proper course is to take action under S. 107, 116, Cr. P.C. Thus,
what is necessary to give jurisdiction to the Magistrate to act under S. 145, Cr. P.C. is the fact that
there must be a dispute in respect of actual possession of the property in dispute. Similarly, if the
claim is vague or if from the perusal of the application for initiation of proceedings under S. 145,
Cr. P.C. it is proved that there is no dispute in respect of possession or if it appears that one party
is in possession of the property in dispute from a very long time then in these circumstances the
Magistrate has no jurisdiction to initiate the proceedings under S. 145. Cr. P.C. In the case of
Makhan Lal Raina v. Addl. City Magistrate, Lucknow, 1989 LCD 143, this Court in similar
circumstances quashed the order holding that the proceedings under S. 145, Cr. P.C. should not
have been initiated because admittedly the first party was in possession of the property in dispute.
In the instant case from the perusal of the application (Annexure 3) it is clear that the petitioner is
in possession of the temple and is managing the affairs of the temple for a very long time i.e. 1986."

21. She has submitted that it is clear that jurisdiction to initiate proceeding under Sections
164/165 BNSS, akin to Sections 145/146 CrPC (now repealed), arises in case there is dispute of
actual possession of any immovable property, which is likely to lead to the breach of peace. There
is a police report which shows possession of shop with answering-opposite party nos.2 and 3.

22. I have learned counsel for the contesting parties and have perused the records.

23. After going through record and the police report, it is clear that answering-opposite
party nos.2 and 3 are claiming tenants of applicant and they are in possession of shop in question.
The proceeding under Sections 126/135 BNSS has already been initiated between the parties by the
Magistrate as is apparent from Police Report dated 03.08.2024. If there is any law and order
situation certainly, the police is under obligation to look into the matter. The State Authority has to
protect the parties but if actual possession is there with answering-opposite party nos.2 and 3, they
cannot be dispossessed by proceeding under Sections 164/165 BNSS except in accordance with law
by the order of Court. The case of answering-opposite party nos.2 and 3 is covered by the judgment
of this Court passed in Mahabirji Mandir Committee (Supra) and Virendra Kumar (Supra).

24. The Revisional Court has rightly set aside the order passed by the City Magistrate vide
impugned order, which is hereby affirmed. The application is, accordingly, rejected.
938 INDIAN LAW REPORTS ALLAHABAD SERIES
25. It is, however, made clear that the observation made by this Court will not be
considered by any Court or Authority in future and whatever is observed in this case, is only
applicable for disposal of this application.
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(2026) 4 ILRA 938
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.04.2026

BEFORE

THE HON'BLE MANOJ BAJAJ, J.

Application U/S 528 BNSS No. 12417 of 2025
alongwith
Application U/S 528 BNSS. No. 1738 of 2021
alongwith
Application U/S 528 BNSS. No. 42067 of 2022

Urmila Yadav ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Issue for consideration
In the present case applicant challenge to orders passed during rape case trial permitting expert examination
of a disputed handwritten letter at the instance of the accused u/s 311 CrPC, refusing DNA testing of the
accused with the child allegedly born from the prosecutrix, and dismissing an application u/s 319 CrPC for
summoning additional accused persons.

Headnotes
A. Indian Penal Code,1860-Sections 376, 313, 506-Criminal Procedure Code,1973-Sections 311,
319-Expert examination of disputed handwriting-Accused relied upon a letter allegedly written
by the prosecutrix to establish consent and sought handwriting comparison by an expert-Mere
denial of authorship by the prosecutrix during cross-examination does not render the document
inadmisible or foreclose scientific examination thereof-Trial court justified in permitting expert
analysis of the disputed document, the same being relevant for effective adjudication of the
defence case-Order allowing application u/s 311 CrPC upheld.(Para 10)

B. DNA Testing-Child allegedly born from relationship between prosecutrix and accused-DNA
profiling of the accused and the child alleged to have been born from the sexual relationship
would constitute crucial scientific evidence having direct nexus with the prosecution caseRejection of such prayer solely on the grounds that the Investigating officer had not conducted
the test or that the trial had reached an advanced stage held unsustainable-Application for DNA
testing allowed.(Para 11, 12)
Summoning of additional accused-Section 319 CrPC-Revision challenging refusal to summon
additional accused persons having been withdrawn by the petitioner, the same was dismissed as
withdrawn.(Para 13)

Held
The court observed that both the prosecution and the defence are entitled to rely upon the best available
evidence in a criminal trial. While the order allowing handwriting comparison was affirmed, the rejection of