C482/178/2012 of SMT. ASHRUFI DEVI Vs STATE OF UTTARAKHAND AND ANR

IN THE HIGH COURT OF UTTARAKHAND ATNAINITAL

Criminal Misc. Application No. 178 of 2012 (Under Section 482 Cr.P.C.)

Smt. Ashrufi Devi

…...….…… Applicant

Versus

State of Uttarakhand and another ………. Respondents

Mr. A. M. Saklani, Advocate for the applicant.

Mr. Pramod Tiwari, Brief Holder and Ms. Geeta Parihar, Brief Holder for the State. Mr. Sandeep Kothari, Advocate for the respondent no. 2.

U.C. Dhyani, J. (Oral)

1.By means of present application under Section 482 Cr.P.C., the applicant seeks to quash the impugned order dated 11.08.2009 passed by Sub Divisional Magistrate, Narendra Nagar, District Tehri Garhwal in criminal case no. 21 of 2007 Rajendra Singh Vs. Smt. Ashrufi Devi under Section 133 of Cr.P.C., and order dated 18.11.2011 passed by Additional District and Sessions Judge, Tehri Garhwal in criminal revision no. 32 of 2009. the applicant seeks to quash the impugned order dated 11.08.2009 passed by Sub Divisional Magistrate, Narendra Nagar, District Tehri Garhwal in criminal case no. 21 of 2007 Rajendra Singh Vs. Smt. Ashrufi Devi under Section 133 of Cr.P.C., and order dated 18.11.2011 passed by Additional District and Sessions Judge, Tehri Garhwal in criminal revision no. 32 of 2009.

2.The Sub Divisional Magistrate, Narendra Nagar, District Tehri Garhwal passed an order dated 11.08.2009 in proceedings under Section 133 Cr.P.C., between Rajendra Singh vs Ashrufi Devi. Garhwal passed an order dated 11.08.2009 in proceedings under Section 133 Cr.P.C., between Rajendra Singh vs Ashrufi Devi.

3.Aggrieved against the same, criminal revision was preferred before the Sessions Judge, which was adjudicated by Additional Sessions Judge, Tehri Garhwal. The revision was dismissed, vide order dated 18.11.2011. Hence present application under Section 482 Cr.P.C. before the Sessions Judge, which was adjudicated by Additional Sessions Judge, Tehri Garhwal. The revision was dismissed, vide order dated 18.11.2011. Hence present application under Section 482 Cr.P.C.

4.When petition came up for admission before the Coordinate Bench of this Court, no interim order was granted on 22.02.2012. Bench of this Court, no interim order was granted on 22.02.2012.

5. It is the submission of learned counsel for applicant that the dispute is of the private passage. dispute is of the private passage.

6. Learned counsel for the respondents submitted otherwise. According to him, the construction was raised on pubic path. According to him, the construction was raised on pubic path.

7.The operative portion of the order passed by learned Sub Divisional Magistrate on 11.08.2009 reads as follows: Divisional Magistrate on 11.08.2009 reads as follows:

“Opposite party Smt. Ashrufi Devi w/o Late Sher Singh, R/o Village Kuri Patti Kujani has constructed permanent structure /house over the land recorded in khasra no. 910 at Bhaisyaro Tok in village Sweer, which is recorded in thename of State of Uttarakhand, consisting of three rooms at ground floor and is let out on rent and part in front of said house leading to residential house over khasra no. 888 of Rajendra Singh s/o Shoban Singh has beenencroached by extension of courtyard and has beenblocked. Such encroachment be removed within week. Notice u/s 141 Cr.P.C. be issued to opposite party. File be consigned after compliance.” [Emphasis Supplied]

8.It is, therefore, clear that the disputed land is public pathway and, therefore, the proceeding under Section 133 Cr.P.C. have rightly been initiated against the opposite party (applicant herein). and, therefore, the proceeding under Section 133 Cr.P.C. have rightly been initiated against the opposite party (applicant herein).

9.When the said order was challenged in the revisional court, learned revisional court did not find it to be good case for interference in the revision. Learned trial court as well as learned revisional court has given cogent reasons for coming to the conclusion arrived at by them in their respective judgments. The decision of the revisional court is fortified by the decisions, which have been mentioned in the impugned order itself. learned revisional court did not find it to be good case for interference in the revision. Learned trial court as well as learned revisional court has given cogent reasons for coming to the conclusion arrived at by them in their respective judgments. The decision of the revisional court is fortified by the decisions, which have been mentioned in the impugned order itself.

10.Thus, there are concurrent findings of two courts below. This Court has no reason to hold that the dispute arose over private piece of land. This Court has no reason take different view from what was taken by two courts below. Court has no reason to hold that the dispute arose over private piece of land. This Court has no reason take different view from what was taken by two courts below.

11.Concurrent findings of the two courts below can be upset by this Court only on the ground of perversity, which means ‘outrageous defiance of logic’. Irrationality and perversity are recognized grounds of judicial review which is available on three grounds – illegality, irrationality and procedural impropriety. this Court only on the ground of perversity, which means ‘outrageous defiance of logic’. Irrationality and perversity are recognized grounds of judicial review which is available on three grounds – illegality, irrationality and procedural impropriety.

12.It is also settled law that the factual controversy need not be gone into by this Court in exercise of its inherent jurisdiction. Inherent jurisdiction under Section 482 of Cr. P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid in the gone into by this Court in exercise of its inherent jurisdiction. Inherent jurisdiction under Section 482 of Cr. P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid in the

Section itself. The applicant, in the instant case, is unable to pass those tests.

13.The scope of interference of this Court under Section 482 of Cr.P.C has been highlighted by Hon’ble Supreme Court in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330 and Amit Kapoor vs. Ramesh Chander and another, 2013 (1) SCC (Crl) 986.Cr.P.C has been highlighted by Hon’ble Supreme Court in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330 and Amit Kapoor vs. Ramesh Chander and another, 2013 (1) SCC (Crl) 986.

14.This Court is, therefore, of the view that no interference is called for in the proceedings of the Court below, in exercise of its inherent jurisdiction. Application under Section 482 Cr.P.C. filed on behalf of the applicant is, therefore, dismissed. called for in the proceedings of the Court below, in exercise of its inherent jurisdiction. Application under Section 482 Cr.P.C. filed on behalf of the applicant is, therefore, dismissed.

Balwant

(U.C. Dhyani, J.)

19.04.2017