Uttarakhand High Court
Anuj &Another ……Applicants vs State Of Uttarakhand on 20 June, 2025
2025:UHC:5323
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
CRIMINAL MISC. APPLICATION No. 603 of 2025
Anuj &Another ......Applicants
Versus
State of Uttarakhand .....Respondent
Presence:
Mr. Ajay Veer Pundir, learned counsel for the Applicants.
Mr. Vipul Painuly, learned A.G.A., for the State of Uttarakhand.
Hon'ble Ashish Naithani, J.
1. This criminal miscellaneous application under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023, has been preferred by the
applicants Anuj and Neeraj seeking to challenge and quash the judgment
and order dated 30.04.2025 passed by the learned IV Additional Sessions
Judge, Haridwar, in Criminal Revision No. 83 of 2025. The said revision
had affirmed the final order dated 07.02.2025 passed by the Sub-
Divisional Magistrate, Roorkee in Case No. 14 of 2022, whereby the
Applicants were directed to remove an alleged public nuisance under
Section 133 of the Cr.P.C. (Section 133 of BNSS, 2023).
2. The grievance of the Applicants is that the construction raised over a
pathway near their residence, which forms the subject matter of the
dispute, does not amount to any obstruction to the public, and that the
impugned orders are contrary to law, facts, and the revenue record.
3. The factual background in brief, is that on 07.11.2022, one Shri Vikas,
resident of Village Rahmatpur, submitted a complaint before the District
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Criminal Misc. Application No.603 of 2025-----Anuj &Another vs State of Uttarakhand
Ashish Naithani J.
2025:UHC:5323
Magistrate, Haridwar alleging that the Applicants and others had
constructed rooms over a public lane by placing concrete lintels across the
street between their residential buildings, thereby creating a public
obstruction. Pursuant to this, the matter was referred to the Tehsildar,
Roorkee, for an on-site enquiry.
4. The reports submitted by the Naib Tehsildar and the Revenue Inspector
noted that the disputed street, located on Khasra No. 175, was being used
by multiple families (nine in total) and that the construction of rooms
above the path was improper. A conditional order under Section 133
Cr.P.C. (Section 133 of BNSS, 2023) was passed by the SDM, Roorkee,
on 01.12.2022, calling upon the Applicants to remove the structure or
show cause.
5. The Applicants filed objections dated 10.01.2023, contending that the path
in question is private and part of their ancestral Aabadi land, with no
recorded entry showing it as a public pathway. They further claimed that
the lintel construction was carried out with the consent of neighbouring
residents many years ago and does not obstruct public movement.
6. However, after considering the objections and the materials on record, the
Sub-Divisional Magistrate finalised the conditional order on 07.02.2025
and directed the Applicants to remove the structure within 15 days, failing
which coercive action under Section 188 IPC would follow. This order
was affirmed by the learned Revisional Court, leading to the present
petition.
7. Heard Mr. Ajay Veer Pundir, learned counsel for the Applicants, and Mr.
Vipul Painuly, learned A.G.A. for the State of Uttarakhand.
8. Learned counsel for the Applicants submitted that the order passed by the
learned Sub-Divisional Magistrate on 07.02.2025, and subsequently
affirmed by the Revisional Court on 30.04.2025, is manifestly illegal and
contrary to the established principles of law.
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Criminal Misc. Application No.603 of 2025-----Anuj &Another vs State of Uttarakhand
Ashish Naithani J.
2025:UHC:5323
9. It was argued that the construction in question, namely, the lintel and room
constructed above the alleged lane,has existed for more than two decades
and was raised with the consent of neighbouring residents, including the
complainant's family. The Applicants emphasised that the path in question
is not recorded as a public pathway in the revenue records. It forms part of
their ancestral Aabadi land, falling within Khasra No. 175. In the absence
of any official designation of the path as a public road, the authority
exercised by the SDM under Section 133 Cr.P.C. (Section 133 of BNSS,
2023) was without jurisdiction.
10. It was further contended that the learned Magistrate had acted solely
based on a revenue report which remained untested through oral evidence.
The Applicant's objections were allegedly not appreciated from a proper
perspective, and despite bringing certified revenue maps and Khatauni
entries on record, the trial court failed to consider this documentary
evidence. Moreover, the Revisional Court, while exercising jurisdiction
under Section 438 of BNSS, did not properly scrutinise whether the lower
court's findings were legally sustainable. The Applicantsalleged a
complete absence of oral evidence and contended that the trial court
proceeded without due compliance with the mandate of Sections 137 and
138 of the Cr.P.C. It was thus argued that the entire proceedings suffer
from a lack of procedural fairness and should be quashed.
11. Per contra, learned State Counsel opposed the application and
submitted that the orders passed by the authorities below were legally
sound and did not warrant interference. It was argued that the disputed
pathway is in fact a public street, used regularly by nine families residing
in the locality, and is situated on Khasra No. 175 which is duly recorded in
the government's ownership records as Property No. 78. Based on an on-
site inspection carried out by the Naib Tehsildar and the Revenue
Inspector, it was clearly established that the Applicants had placed
concrete lintels between their houses across the lane and constructed
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Criminal Misc. Application No.603 of 2025-----Anuj &Another vs State of Uttarakhand
Ashish Naithani J.
2025:UHC:5323
rooms above, thereby physically obstructing the path used by the public.
The Revenue Authorities had submitted detailed reports, supported by
photographs and maps, which were taken into account by the Sub-
Divisional Magistrate.
12. It was further submitted that the construction above a public path, even
at a height of 13 to 14 feet, constitutes a public nuisance under Section
133 Cr.P.C. (Section 133 of BNSS, 2023) since it interferes with the full
and free enjoyment of the right of way. The fact that the Applicants
presented no express permission or titleto justify their construction on a
pathway used by others justified the action taken by the Magistrate.
13. The learned State Counsel also emphasised that the Applicants failed to
produce any oral or documentary evidence that could rebut the
presumption arising from the official inspection reports. The argument
regarding old construction was termed as a factual plea that did not dilute
the illegality of the encroachment. It was therefore prayed that the
application be dismissed, as the Applicants were seeking to abuse the
process of law to regularise an illegal obstruction on public land.
14. Upon careful consideration of the record of proceedings and the legal
framework applicable to proceedings under Section 133 Cr.P.C., (Section
133 of BNSS, 2023) this Court finds no sufficient ground to exercise its
extraordinary jurisdiction under Section 528 of the BNSS.
15. The principal contention raised by the Applicants is that the lane in
question is a private passage over which no public right exists, and
therefore, the order directing the removal of the overhead construction
violates their property rights. However, this submission stands on tenuous
ground in light of the material placed on record. The Revenue Authorities,
including the Revenue Sub-Inspector and Naib Tehsildar, in their
reportsbased on physical inspection,have consistently maintained that the
passage lies within Khasra No. 175 and is recorded as part of public land
under Property No. 78 in the revenue ownership records. The said lane is
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Criminal Misc. Application No.603 of 2025-----Anuj &Another vs State of Uttarakhand
Ashish Naithani J.
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also shown to be in actual use by nine families residing in the locality. The
photographs and maps placed on record, which have not been substantially
controverted, indicate that the Applicants have constructed permanent
rooms over a common lane by connecting rooftops using concrete lintels,
effectively encroaching upon the airspace above the pathway and altering
its character.
16. While the Applicants argued that the construction is old and does not
hinder access, they have not produced any legal document establishing
exclusive title or private status of the land beneath the disputed structure.
Mere reliance on Khatauni or oral claims of ancestral use does not suffice
in the face of consistent official records to the contrary. The claim that the
construction was done with the consent of some local individuals also
cannot override the larger public right of passage if the lane provides
access to other residences. Even assuming the consent of particular
neighbours, such consent cannot legitimise a construction that impedes
public convenience or obstructs a way of community usage.
17. It is well-settled that the object of Section 133 Cr.P.C. (Section 133 of
BNSS, 2023) is to provide a summary and preventive remedy against
public nuisance and obstruction. The jurisdiction under this provision is
not intended for conclusively adjudicating title disputes but to ensure that
public pathways and areas remain free from encroachment or obstruction.
In the present case, the Sub-Divisional Magistrate appears to have
followed the procedure contemplated by law, by issuing a conditional
order, considering objections, conducting site inspections, and thereafter
making the order absolute. The Revisional Court also undertook a
reappraisal of the factual and legal aspects and found no infirmity in the
conclusions drawn by the Magistrate.
18. As regards the present petition under Section 528 of the BNSS, it is
pertinent to note that the High Court's jurisdiction under this provision is
limited to correcting patent errors of law, jurisdictional infirmities, or
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Criminal Misc. Application No.603 of 2025-----Anuj &Another vs State of Uttarakhand
Ashish Naithani J.
2025:UHC:5323
grave miscarriage of justice arising from proceedings of subordinate
courts. This Court is not to re-evaluate factual findings in detail unless
there is manifest perversity or violation of procedure. In the present case,
the Applicants have been unable to demonstrate any such illegality or
irregularity. The mere disagreement with factual inferences drawn by the
Magistrate and the Revisional Court does not provide a valid basis for
invoking the extraordinary remedy under Section 528 of the BNSS.
19. Moreover, the record does not bear out the allegations that the courts
failed to examine oral evidence or overlooked specific revenue entries.
The materials placed on file were considered in the proper context, and the
conclusions drawn were consistent with the preventive nature of the
jurisdiction exercised under Section 133 (Section 133 of BNSS, 2023)
Cr.P.C. There is nothing to suggest that the Applicants were denied any
procedural fairness or that any finding was based on inadmissible or
irrelevant evidence.
20. Upon consideration of the entire record, this Court finds that the
Applicants have failed to make out a case warranting interference with the
impugned orders. There is no illegality, procedural impropriety, or
jurisdictional error in how the orders dated 07.02.2025 and 30.04.2025
were passed.
ORDER
Having regard to the findings recorded hereinabove, this Court is of the
considered opinion that there is no illegality, irregularity, or jurisdictional
error in the order dated 07.02.2025 passed by the learned Sub-Divisional
Magistrate, Roorkee in Case No. 14 of 2022, and the judgment dated
30.04.2025 passed by the learned IV Additional Sessions Judge, Haridwar in
Criminal Revision No. 83 of 2025 affirming the same.
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Criminal Misc. Application No.603 of 2025—–Anuj &Another vs State of Uttarakhand
Ashish Naithani J.
2025:UHC:5323
Accordingly, the present Criminal Miscellaneous Application No. 603
of 2025, filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita,
2023, is dismissed. There shall be no order as to costs.
(Ashish Naithani, J.)
Dated:20.06.2025
NR/
NITESH Digitally signed by NITESH RAWAT
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UTTARAKHAND, ou=HIGH COURT
OF UTTARAKHAND,
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cf436bdce9fb, postalCode=263001,
st=UTTARAKHAND,
serialNumber=F691686B3C447434E
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FFED3C8A159F3BDD03C,
cn=NITESH RAWAT
Date: 2025.06.24 16:17:58 +05’30’
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Criminal Misc. Application No.603 of 2025—–Anuj &Another vs State of Uttarakhand
Ashish Naithani J.