Ashutosh Shukla and Another Vs State of U.P. Thru. Prin. Secy. Home Lko. and Another — Allahabad HC (2025) — LawSathi Research

Ashutosh Shukla and Another Vs State of U.P. Thru. Prin. Secy. Home Lko. and Another — Allahabad HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

No relief to the petitioners; writ petition dismissed. Direction issued to the Civil Judge, Junior Division, Court No.39, Barabanki to decide Suit No.330/2018 ('Kuldeep Shukla Vs. Jagjivan Prasad & Ors.') expeditiously, if possible within one year, without unnecessary adjournments.

Issue for consideration

Whether a writ of certiorari should issue to quash (i) the SDM, Tehsil Ram Nagara, Barabanki's order dated 23.11.2022 in Case No.00165 of 2020 rejecting the Section 133 Cr.P.C. application, and (ii) the Additional Session Judge, Court No.5, Barabanki's order dated 5.10.2023 in Criminal Revision No.205/2022. +2 more

Court's answer

Accordingly, the present writ petition is misconceived and is dismissed.

Ratio / Principle

It is an undisputed fact that the suit concerning the property is pending, but the application under Section 133 Cr.P.C. was filed without enclosing any site plan relating to the disputed passage; in such circumstances the court below rightly rejected the application.

Key takeaways

The Civil Judge, Junior Division, Court No.39, Barabanki is directed to decide Suit No.330/2018 ('Kuldeep Shukla Vs. Jagjivan Prasad & Ors.') expeditiously, if possible within one year, without giving any unnecessary adjournment to either party.ratio¶15

Detailed headnote1 paragraphs

Criminal Misc. Writ Petition No.542 of 2024 (Ashutosh Shukla & Anr. v. State of U.P. & Anr.), decided 20.2.2025 by Rajeev Singh, J., High Court of Judicature at Allahabad, Lucknow Bench — Dismissed. Petitioners sought certiorari against (i) the SDM, Tehsil Ram Nagara, Barabanki's order dated 23.11.2022 in Case No.00165 of 2020 under S.133 Cr.P.C. rejecting their application dated 4.9.2019 for removal of obstruction of a public way, and (ii) the Additional Session Judge, Court No.5, Barabanki's order dated 5.10.2023 rejecting Criminal Revision No.205/2022. The SDM had declined relief only because Regular Suit No.330 of 2018 ('Kuldeep Shukla Vs. Jagjivan Prasad & Ors.') on the identical issue was pending before the Civil Judge, Junior Division, Barabanki. Holding: the pendency of the civil suit being undisputed, the decisive defect was that the Section 133 application was filed without enclosing any site plan of the disputed passage; the court below had therefore rightly rejected it and the writ petition was misconceived. The Court did not decide the petitioners' contention (Suresh Prakash, 1976 CrLJ 462; Qamar Jahan, 1997 CrLJ 3810) that mere pendency of a suit is no bar to Section 133 proceedings, nor did it engage with Vasant Manga Nikumba (1996 SCC (Crl.) 27) relied on for the State. Direction: Civil Judge (J.D.), Court No.39, Barabanki to conclude Suit No.330/2018 expeditiously, if possible within one year, without unnecessary adjournments.

Neutral Citation No. - 2025:AHC-LKO:11082

Court No. - 13

Case :- CRIMINAL MISC. WRIT PETITION No. - 542 of 2024

Petitioner :- Ashutosh Shukla And Another Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Petitioner :- Ajeet Kumar,Syed Ahmad Jamal Counsel for Respondent :- G.A.,Devendra Nath Pandey,Laxmi Narayan Gupta

Hon'ble Rajeev Singh,J.

Rejoinder affidavit filed by learned counsel for the petitioners is taken on record.

Heard learned counsel for the petitioners, learned counsel for the private respondent and learned A.G.A. for the State.

The present writ petition is filed with the following prayer :-

(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 23.11.2022 passed by Sub Divisional Magistrate, Tehsil Ram Nagara, District Barabanki in Case No.00165 of 2020 in U/S 133 Cr.P.C. "State Vs. Kuldeep Shukla".

(ii) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 5.10.2023 passed by Additional Session Judge, Court No.5, Barabanki in Criminal Revision No.205/2022 "Ashutosh Shukla & Anr. Vs. Kuldeep Shukla & Anr.

Learned counsel for the petitioners submits that public way was restrained by the private respondent, as a result, application under Section 133 Cr.P.C. was filed on 4.9.2019 for removing the obstruction from the public way but the learned court below rejected the said application in the most mechanical manner on 23.11.2022 on the ground that for the identical issue Regular Suit No.330 of 2018, 'Kuldeep Shukla Vs. Jagjivan Prasad & Ors.' is pending before the Civil Judge, Junior Division, Barabanki since 28.3.2018. Thereafter, aforesaid order was challenged before the learned Sessions Judge, Barabanki but the same was also rejected. Learned counsel for the petitioners also relied on the decision of this Court in the case of Suresh Prakash Vs. Krishna

Swarup reported in 1976 CrLJ 462 and Qamar Jahan Vs. State of U.P. reported in 1997 CrLJ 3810 and submits that mere pendency of suit is not barred for filing the proceeding under Section 133 Cr.P.C. He also relied on the decision of this Court in the case of Mohd. Ibrahim & Ors. Vs. State of U.P. & Ors. passed in Application U/S 482 No.6556 of 2013 and requested for kind indulgence of this Court.

Learned A.G.A. as well as learned counsel for the complainant oppose the prayer of the petitioners and submits that controversy for the passage is still pending before the Civil Court and site plan is also not enclosed with the application under Section 133 Cr.P.C. He also submits that judgments relied by the learned counsel for the petitioners are not applicable in the present petition and relied on the decision of Hon'ble Supreme Court in the Case of Vasant Manga Nikumba Vs. Baburao Bhikanna Naidu reported in 1996 SCC (Crl.) 27 and submits that there is no illegality in the order passed by the court below.

Considering the submissions of learned counsel for the parties, and going through the contents of the petition, counter affidavit, rejoinder affidavit and other relevant documents, it is undisputed fact that suit for property in question is pending but application under Section 133 Cr.P.C. was filed without enclosing any site plan related to the disputed passage. In such circumstances, learned court below has rightly rejected the application of the petitioner, accordingly, the present writ petition is misconceived and same is hereby, dismissed .

The Civil Judge, Junior Division, Court No.39, Barabanki is directed to decide the suit No.330/2018 'Kuldeep Shukla Vs. Jagjivan Prasad & Ors.' , expeditiously, if possible within one year, without giving any unnecessary adjournment to either of the parties.

Order Date :- 20.2.2025 Gaurav/-

Digitally signed by :- GAURAV PAL High Court of Judicature at Allahabad, Lucknow Bench