# Madhav Raj & Anr v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2024) 7 ILRA 1183
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-19
- **Case number:** Crl. Misc. W.P. No. 5099 of 2024
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/madhav-raj-anr-v-state-of-u-p-ors-opp-parties-52207
- **Pages:** 4

## Headnote

A. Criminal Law - Order passed by Sub
Divisional Magistrate under Section 133
CrPC- Removal of encroachment on the
public road- Order assailed in revision-
revision also dismissed- Both these orders
under challenge in the writ petition- both
orders
passed
after
examining
the
material on record- no illegality- Both
orders upheld- petition dismissed.
HELD:
After considering the arguments as advanced by
learned counsel for the respective parties as
well as after perusal of records, this Court is of
the view that the order passed by the learned
Sub Divisional Magistrate, Colonelganj, Gonda
dated 03.10.2022 is just and proper as the
same has been passed after considering the
police report and the entire evidence available
on
record.
The
learned
Sub
Divisional
Magistrate, Colonelganj, Gonda gave a finding
that the petitioners have encroached the land
and a positive direction has been given to
remove the encroachment, which has not yet
been done and even the Criminal Revision filed
by the petitioners against the order dated
03.10.2022 has also been dismissed by a
detailed order dated 10.05.2024 passed by
learned
Additional
Sessions
Judge,
Court
No.4/Special Judge (E.C. Act), District-Gonda.
Thus, this Court does not find any justification
to quash the impugned orders under challenge
in this writ petition. (Para6)

Petition dismissed. (E-14)

## Text

7 All. Madhav Raj & Anr. Vs. State of U.P. & Ors.
1183
trial court must evaluate the
evidence
against
the
persons
sought to be summoned and then
adjudge whether such material is,
more or less, carry the same
weightage and value as has been
testified against those who are
already facing trial. In the absence
of any credible evidence, the power
under Section 319 Cr.P.C. ought
not to be invoked."
(Emphasized by Court)
32. From perusal of the
judgment of the Hon'ble Supreme
Court in the case of Juhru (supra),
it also emerges that the Apex Court
has categorically held that the
powers
of
summoning
under
Section 319 of the Code is not to be
exercised
routinely
and
the
existence of more than a prima
facie case is sine qua non to
summon an additional accused."

20. From the judgments as referred
to above, it is apparent that the scope of
exercise of powers under Section 319 of the
Code is vested with the court i.e. the power
to summon is exclusively of the court and
that prerequisite for exercise of the power
under Section 319 of the Code is the
satisfaction of the court to proceed against
a person who is not an accused but against
whom evidence is there.

21. Being armed with the aforesaid
interpretation as given to Section 319 of the
Code and power to summon an accused,
when the impugned order is seen in context
of the law laid down by the Hon'ble
Supreme Court in the aforesaid judgments,
it thus emerges that the learned court while
passing the order impugned has considered
the statements of P.Ws.1, 2 and 3 to arrive
at a prima facie satisfaction of the
revisionist to be summoned for being tried
for the offences as have been levelled.

22. The judgment of the Hon'ble
Supreme Court in the case of Brijendra
Singh (supra) which is the sheet anchor of
the argument of the learned counsel for the
revisionist has also been considered by the
Hon'ble Supreme Court in the case of
Yashodhan Singh (supra) wherein the
Hon'ble Supreme Court has categorically
held that once the trial court finds that
there is some 'evidence' against such a
person on the basis of which it can be
gathered that he/she appears to be the
guilty of the offence, there can be exercise
of the power under Section 319 of the
Code.

23. Keeping in view the aforesaid
discussion and the satisfaction of the Court
as per the provisions of Section 319 of the
Code vis--vis the impugned order and
summoning the revisionist, this Court does
not find any perversity in the impugned
order.
The
revision
is
accordingly
dismissed.
----------
(2024) 7 ILRA 1183
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.07.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Crl. Misc. W.P. No. 5099 of 2024

Madhav Raj & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Petitioners:
Amitesh Pratap
Singh, Abhijeet P. Singh
Chauhan, Naveen Kumar Singh, Shesh Ram
Yadav
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opp. Parties:
G.A., Purnima Mayank

A. Criminal Law - Order passed by Sub
Divisional Magistrate under Section 133
CrPC- Removal of encroachment on the
public road- Order assailed in revision-
revision also dismissed- Both these orders
under challenge in the writ petition- both
orders
passed
after
examining
the
material on record- no illegality- Both
orders upheld- petition dismissed.
HELD:
After considering the arguments as advanced by
learned counsel for the respective parties as
well as after perusal of records, this Court is of
the view that the order passed by the learned
Sub Divisional Magistrate, Colonelganj, Gonda
dated 03.10.2022 is just and proper as the
same has been passed after considering the
police report and the entire evidence available
on
record.
The
learned
Sub
Divisional
Magistrate, Colonelganj, Gonda gave a finding
that the petitioners have encroached the land
and a positive direction has been given to
remove the encroachment, which has not yet
been done and even the Criminal Revision filed
by the petitioners against the order dated
03.10.2022 has also been dismissed by a
detailed order dated 10.05.2024 passed by
learned
Additional
Sessions
Judge,
Court
No.4/Special Judge (E.C. Act), District-Gonda.
Thus, this Court does not find any justification
to quash the impugned orders under challenge
in this writ petition. (Para6)

Petition dismissed. (E-14)

(Delivered by 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 Staterespondent 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), DistrictGonda 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,
TehsilColonelganj,
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, DistrictGonda 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
7 All. Madhav Raj & Anr. Vs. State of U.P. & Ors.
1185
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), DistrictGonda 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 respectively were rightly passed, there
is no illegality and infirmity in the impugned
orders. They further submits that if the
petitioners are claiming that they have not
encroached a public road and have done
construction on their own land, then they
have an alternate remedy to approach the
competent court by filing a civil suit
alongwith an application claiming injunction
in their favour, in accordance with law, thus,
they finally submit that the present petition
lacks merit and is liable to be dismissed.

6. After considering the arguments
as advanced by learned counsel for the
respective parties as well as after perusal of
records, this Court is of the view that the
order passed by the learned Sub Divisional
Magistrate, Colonelganj, Gonda dated
03.10.2022 is just and proper as the same has
been passed after considering the police report
and the entire evidence available on record.
The learned Sub Divisional Magistrate,
Colonelganj, Gonda gave a finding that the
petitioners have encroached the land and a
positive direction has been given to remove
the encroachment, which has not yet been
done and even the Criminal Revision filed by
the petitioners against the order dated
03.10.2022 has also been dismissed by a
detailed order dated 10.05.2024 passed by
learned Additional Sessions Judge, Court
No.4/Special Judge (E.C. Act), DistrictGonda. Thus, this Court does not find any
justification to quash the impugned orders
under challenge in this writ petition.

7. With the aforesaid observations,
the instant writ petition stands dismissed.
1186 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2024) 7 ILRA 1186
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.07.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Crl. Misc. W.P. No. 7463 of 2024

Shobhit Nehra & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Petitioners:
Sri Rahul Chaudhary, Sri V.P. Srivastava (Sr.
Adv.), Sri Salil Singh

Counsel for the Opp. Parties:
Atul Kumar Shahi, G.A., Sri Vinay Sharan (Sr.
Advocate)

Criminal Law - FIR against petitioners
challenged- A long history of civil disputes
between the parties- However, it does not
mean that police investigation against the
criminal allegations during the pendency
of civil suit cannot be carried out- It is the
duty of constitutional court to secure
personal liberty of individuals- Protection
from
arrest
until
the
submission
of
chargesheet can be given- FIRs being
written by the experts- Relegating the
petitioners to the remedy under Section
438 CrPC- Not justifiable in light of huge
pendency of cases in St. of UP- Right to
liberty
protected
without
obstructing
investigation and without quashing FIR-
petition disposed of. (Paras 31, 33, 34, 35,
37, 38, 39, 40, 41, 43, 46 and 47)

HELD:

Keeping in view, the allegations made in the
FIR, there can be civil dispute between the
parties, but if some crime is committed by one
party against the other during the pendency of
civil suit, it would require investigation. (Para
31)
It is convenient for the court to assume that the
allegations in the FIR are gospel truth and
thereafter close the chapter. However, the fact
remains that the truth is yet to emerge from the
statutory investigation to be conducted by the
investigating officer. There is also possibility
that the allegations made in the FIR are found
by the investigating officer to be false. In that
case denial of any relief to the petitioners would
not be in the interest of justice. As per Article 21
of the constitution of India right to life and
liberty of "we the people" cannot be curtailed
only because the courts have set up a standard
which provides that if by merely going through
the FIR commission of cognizable offence /
offences is found, no interference would be
required in under the Article 226 of constitution
of India and right to liberty of the petitioner
cannot be protected and he should take
recourse to Section 438 Cr.P.C for seeking
anticipatory bail. (Para 33)

Now a days FIR is lodged mostly by getting it
drafted by a legal expert or the head constable
(diwan) of the police station. In the first
information
report,
the
ingredients
for
constituting the alleged offence / offences are
incorporated so meticulously that the court may
lay its hand off by a bare reading of FIR itself.
The first information report is written with
precision and perfection so that it fits into the
convenient parameters of the court settled by
the court itself. (Para 34)

Although it is convenient for the court to deny
relief by the accused to the accused by just
going through the contents of FIR but where it
appears to the courts that there is possibility of
false implication and allegations in the FIR do
not appear to be absolutely correct and may
have been concocted to falsely implicate the
accused / petitioner then, irrespective of the
severity of allegations, interference is called by
court to protect the right to liberty of the
accused / petitioner. (Para 35)

After considering the totality of facts and
circumstances, like previous litigation between
the parties, earlier enmity between them
counter blast implication, etc., court should
interfere to protect right to liberty of accused
even if allegations in the FIR show commission