Allowed

Satish Chandra Sharma and 3 Others v. State of U.P. and 2 Others

Allahabad HC7 Oct 2021CRLP/5947/2021

Case brief

AI extract

What is this about?

This High Court quashed a maliciously lodged FIR against colony residents for obstructing police lines. The court found the FIR contradicted a prior civil judgment confirming the disputed road was the sole access route and that the police were not obstructing it, concluding the registration was intended to harass residents and deprive them of their ingress/egress rights.

What did the court decide?

The impugned First Information Report no.1077 of 2021 dated 24.6.2021 is hereby quashed.

Satish Chandra Sharma and 3 Others Vs State of… — Writ and Judicial Review | Allahabad HC (2021)

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Court No. - 46

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Case :- CRIMINAL MISC. WRIT PETITION No. - 5947 of 2021

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Petitioner :- Satish Chandra Sharma And 3 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Santosh Kumar Dubey Counsel for Respondent :- G.A.

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Hon'ble Surya Prakash Kesarwani,J. Hon'ble Gautam Chowdhary,J.

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Heard Shri Santosh Kumar Dubey, learned counsel for the petitioner and the learned A.G.A. for the State-respondents.

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Rejoinder affidavit dated 29.9.2021 which is filed today is taken on record.

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On 10.08.2021, this Court passed the following order :-

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“Heard learned counsel for the petitioners and learned A.G.A. for the Staterespondents.

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Pursuant to the order dated 05.08.2021, learned A.G.A. states that instructions have been received by him from the Senior Superintendent of Police, Ghaziabad. Learned A.G.A. has produced the instructions before us which has been returned after perusal.

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Perusal of the instructions shows that petitioners/their association filed Injunction Suit No. 1087 of 1997 (Hem Singh Versus State of U.P.), annexing therewith a sketch map of the disputed road in Khasra-plot No.778, which shows that the said road is between the petitioners' colony and the police lines. In the aforesaid suit, issue no.1 was framed as:- "Kya Viwadit Rasta he awa gaman ka ek matra rasta hai". This issue was decided by the Additional Civil Judge (Junior Division), Court No. 3, Ghaziabad, vide order dated 29.11.2008 in favour of the petitioners. However, the suit was dismissed for the reason that since defendant-respondents herein took stand in said suit, that they are not obstructing the petitioners to use the disputed road, therefore, court below found that no cause of action arose to plaintiff to file the Suit. It has been further held that the disputed road is the only road for ingress and egress of the colony in question.

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Prima facie a peaceful agitation by the resident of colony on obstructing the use of the road by the respondents herein, has resulted in the impugned FIR, which prima facie appears to be malicious. On the other hand it reflects abuse of process of law, inasmuch as, the respondents being officer of the State Government, having filed affidavit in the above noted suit stating that they are not obstructing the use of the disputed road and thus, have got the suit dismissed on the ground that no cause of action has arisen, have now adopted a new methodology by registering the FIR against the residents of Pratap Nagar colony.

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In view of the aforesaid and also for the reason mentioned in the order dated 05.08.2021, we direct the Senior Superintendent of Police, Ghaziabad to file counter affidavit by means of his personal affidavit.

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Put up on 23.08.2021 as a fresh case before the appropriate bench.

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Interim order granted earlier, is extended till the next date fixed.”

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A counter affidavit dated 14.9.2021 of Shri Pawan Kumar, Senior Superintendent of Police, Ghaziabad has been filed. In paragraph-10 of the counter affidavit the S.S.P. has stated as under :-

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“That the suits filed by the plaintiffs was dismissed by judgment and decree dated 29.11.2008. The stand of the respondent no.1 and 3 was that the plaintiff have another Rasta for their use to ingress and egress, which is from the main gate of the police line the use of disputed Rasta was objected on the ground of infringement of security as on the eastern side of disputed road there is situated the residential quarter of police line, hospital, school and the community centre. On the western side of the disputed road there is situated the store room, office, quarter guards, Armory magazine. It was because of this reason the use of the disputed Rasta was objected by the defendant no.1 and 3. Copy of the judgment and decree dated 29.11.2008 passed in O.S. No.1087 of 1997 Hem Singh and others and State of U.P. and others is being filed herewith and marked as Annexure No. CA2 to this counter affidavit.”

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Along-with the counter affidavit a copy of plaint of O.S. No.1087/1997 (Hem Singh and others Vs. State of U.P. and others) along-with sketch map, copy of judgement dated 29.11.2008 passed by the Additional Civil Judge (J.D.) Court No.3, Ghaziabad and a copy of order dated 27.1.2010 passed in Civil Appeal no.117 of 2008 (Hem Singh and others Vs. State of U.P. and others) have been filed. The sketch map accompanying the plaint has not been disputed. This sketch map shows that adjoining the police line is a canal and thereafter is the disputed pathway being Khasra plot no.778. This pathway/ road leads to Ghaziabad Hapur road. Thus, on one side of the disputed road is the canal and thereafter police line and on the other side of the disputed road there is Pratap Nagar Colony and some residential quarters of employees/ officers of police department. In the aforesaid O.S. No.1087/1997 six issues were framed. The first and third issues framed in the aforesaid suit were as under :-

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(i) क्या वि��ावि�त रास्ता ही �ा�ीगण के आ�ागमन का एकमात्र रास्ता है ?

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(ii) क्या �ा�ी को कोई �ा� कारण प्राप्त है ?

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The trial court considered in detail issue no.1 and recorded a finding of fact that the disputed road is recorded in revenue record as

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"रास्ता" and it is the only way available to residents of the petitioners’ colony for ingress and egress. A finding was further recorded that the defendants/respondents herein took the stand in the suit that they are not obstructing the petitioners/residents of the colony from using the disputed road but merely they gave suggestion to use the main gate of the police line for ingress and egress to the colony in question. On the basis of the stand taken by the defendants/respondents herein as aforenoted, the trial court, while deciding issue no.3, held that since the defendants are not obstructing/preventing the petitioners from using the disputed road, therefore, no cause of action arose to file the suit. Therefore, in absence of cause of action the suit was dismissed. Aggrieved with the aforesaid judgement and decree passed by the trial court, the petitioners filed a Civil Appeal No.117 of 2008 which was dismissed vide order dated 27.01.2010 upholding the finding of the trial court that no cause of action arose to the plaintiffs/petitioners herein to file the suit. However, surprisingly the appellate court had arbitrarily made certain unwarranted observations in the appellate order regarding the disputed road although no appeal was filed by the defendants to challenge the judgement of the trial Court passed in O.S. No.1087/1997. Thus, the position as it stands today, is that according to own stand of the defendants/respondents herein in the aforesaid O.S. No.1087/1997 the disputed road is the only road for ingress and egress to the colony in question and the defendants never obstructed or prevented the petitioners to use the road but they merely suggested them to enter the colony through the main gate of the police line.

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However, in the paragraph-10 of the counter affidavit the S.S.P., Ghaziabad has made a statement that petitioners/residents of the colony were obstructed/prevented to use the disputed road. The stand so taken in the counter affidavit is self-contradictory and it reflects the real story that in fact the police obstructed the use of the aforesaid disputed road/pathway which was being used by the residents of the colony from several decades and due to obstruction caused by the

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respondents, the residents of the colony made peaceful agitation which resulted in registering the impugned First Information Report.

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The facts as afore-noted and the stand taken by the S.S.P., Ghaziabad despite a judgement of the civil court dated 29.11.2008 passed in O.S. No.1087/1997, leads to an irresistible conclusion that the impugned First Information Report was maliciously lodged/registered by the police so as to harass the residents of the colony and to deprive them of their right to use the disputed road which is being used from several decades. Thus the impugned F.I.R. being malicious in nature, deserves to be quashed.

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For all the reasons afore-stated, the impugned First Information Report no.1077 of 2021 dated 24.6.2021, under sections 147, 148, 332, 353, 341, 188, 269, 270 I.P.C., Section 7 Criminal Law (Amendment Act) and Section 3 Epidemic Act, 1897, Police StationKavi Nagar, District- Ghaziabad is hereby quashed.

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The writ petition is allowed .

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Order Date :- 7.10.2021 shiv

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Satish Chandra Sharma and 3 Others v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Satish Chandra Sharma and 3 Others v. State of U.P. and 2 Others

Case brief

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