Rajendra Kumar And Others vs District And Session Judge, Pratapgarh ...
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Allahabad High Court

Rajendra Kumar And Others vs District And Session Judge, Pratapgarh ... on 7 April, 2025

Author: Rajnish Kumar

Bench: Rajnish Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 



 
Neutral Citation No. - 2025:AHC-LKO:19533
 
Court No. - 11
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 6125 of 2022
 
Petitioner :- Rajendra Kumar And Others
 
Respondent :- District And Session Judge, Pratapgarh And Others
 
Counsel for Petitioner :- Vivekanand Misra
 
Counsel for Respondent :- G.A.,Sumit Kumar Srivastava
 

 
Hon'ble Rajnish Kumar,J.
 

1. Heard Sri Akhilesh Pandey holding brief of Sri Vivekanand Misra, learned counsel for the petitioner and Sri Sumit Kumar Srivastava, learned counsel for the respondent Nos. 3 to 6 and learned A.G.A. for the State.

2. This petition has been filed with the following main relief(s):

"a. Allow the writ petition of the petitioenrs.

b. issue an order or direction in the nature of certiorari for quashing the impugned order dated 16.11.2021 passed by District and Session Judge, Pratapgarh in Criminal Revision No. 78/2001: Rajendra Kumar and others Vs. State of U.P. and others as well as order dated 10.07.2017 learned Sub-Divisional Magistrate, Sadar, Pratapgarh in Suit No. 33/08/17 of 2016 under Section 133 Cr.P.C. Udaybhan Dattak and others versus Gopal Krishan and others (contained as Annexure No. 1 & 2 to this writ petition).

c. Issue an order or direction in the nature of mandamus commanding the Opposite parties not to comply the impugned order dated 10.07.2017 passed by learned Sub-Divisional Magistrate, Sadar, Pratapgarh in Suit No. 33/08/17 of 2016 under Section 133 Cr.P.C. Udaybhan Dattak and others versus Gopal Krishan and others, in the interest of justice."

3. Learned counsel for the petitioners submits that the petitioner had filed a complaint under Section 133 of Criminal Procedure Code (here-in-after referred as Cr.P.C), which was dismissed without considering the report called on the application. The petitioners filed revision. The same has been dismissed without considering the above and grounds raised by the petitioners, therefore, the impugned orders are not sustainable and are liable to be set aside.

4. Per contra, learned counsel for the private respondents submits that the impugned order dated 10.07.2017 has been passed by the Sub-Divisional Magistrate, after considering the report of the Sub Inspector of Police Station-Jethwara, in which it was found that there was no public way at the place, where the public way is being claimed by the petitioners. A Site Plan prepared in Original Suit No. 97/82 was also submitted, which was accepted by both the parties and the same was made part of the judgment passed in the said suit, a copy of which has been placed on record along with the counter affidavit, which indicates that there is no public way in front of the house of the private respondents, where the public way is being claimed by the petitioners, therefore, Sub-Divisional Magistrate has rightly passed the order in accordance with law. He further submits that the Revision was filed with a delay of more than four years without sufficient explanation for the delay, therefore, it has rightly been dismissed.

5. Learned counsel for the private respondents further submits that subsequently another proceeding under Section 133 Cr.P.C. has also been instituted by some of the family members of the petitioners in regard to the same issue, which has also been dismissed, against which an appeal is pending. Thus, the submission is that the impugned orders have been passed in accordance with law. The writ petition has been filed on misconceived grounds and is liable to be dismissed.

6. Having considered the submissions of learned counsel for the parties, I have perused the records.

7. A compliant under Section 133 Cr.P.C. was filed by the petitioners stating that the private respondents are digging in the public way and on being asked to stop, they are adamant to take criminal measures. An objection was filed against the application denying the public way on the place, as claimed by the petitioners. An order dated 24.04.1984 passed in proceedings in a civil proceeding bearing Original Suit No. 97/82 by the Munsif Magistrate, Pratapgarh was also placed on record to show that there was no public way on the land in dispute, but no reply to the same was filed.

8. A report was also called by the Sub-Divisional Magistrate, which was submitted by the Sub-Inspector, Jethwara to the effect that the parties are in possession on their lands. There is a dispute between the parties in regard to the way, but there is no public way at the place of dispute.

9. The petitioners had not appeared in the proceedings. The Sub-Divisional Magistrate after considering the pleadings and the report, closed the proceedings by means of the order dated 10.07.2017 recording that the proceedings which were undertaken under Section 107/116 Cr.P.C. were sufficient and no further action was required in the matter and in accordance with the report of the Sub Inspector, Jethwara dated 06.01.2016. The case was closed and consigned to records and the notice under Section 133 Cr.P.C. dated 03.06.2016 was withdrawn.

10. The Sub-Divisional Magistrate passed the order on the basis of report, which has even not been brought on record by the petitioners before this Court. Only a Site Plan has been brought on record stating that the same was prepared along with the report. Learned counsel for the petitioners presses the same from which also it could not be inferred that there was any public way at the place in dispute. Even otherwise the findings recorded by the Sub-Divisional Magistrate on the basis of the report of the Sub-Inspector Jethwara does not suffer from any illegality or error and nothing could be indicated on account of which any contrary view may be taken by this Court.

11. The aforesaid order passed by the Sub-Divisional Magistrate was challenged by the petitioners in a Revision filed on 15.02.2021 i.e. after about four years. The only ground given in application for condonation of delay of about four years is that the petitioners were continuously obtaining information from their counsel, who used to tell the dates. On 04.02.2021, when again his counsel informed some date, the one of the petitioners Rajendra Kumar enquired from the court and then he came to know that the case has been disposed of by means of the order dated 10.07.2017. Thereafter, the inspection was got done from another counsel and after obtaining the Certified Copy, the revision is being filed without any further delay. Thus, the petitioners have not given any explanation for the delay of four years, except an excuse that his counsel used to inform wrong dates. If counsel of the petitioners had not informed the correct date and about the order, the appropriate action may have been taken against the counsel. However, it is not acceptable that for a period of four years, the petitioners would not have come to know about the orders passed by the Sub-Divisional Officer, because there are eight petitioners and it cannot be accepted that any of the petitioners could not come to know about the order and it has also not been indicated.

12. The revisional court, having considered the grounds taken by the petitioners for condonation of delay, found that no sufficient cause has been shown for condonation of delay. The petitioners have even not disclosed the name of the earlier counsel. The petitioners had also not appeared before the Sub-Divisional Magistrate after filing of the objection by the revisionists.

13. It is settled law that if a litigant is thorough negligent in pursuing the matter, he is not entitled for any relief and condonation of delay. Even otherwise, the delay cannot be condoned without sufficient cause and no sufficient cause could be shown for condonation of delay of such a long delay.

14. As submitted by the counsel for the private respondents another proceedings under Section 133 Cr.P.C. were initiated by some of the relatives of the petitioners, which have also been dismissed and the appeal is pending against the same. However, learned counsel for the petitioners shows ignorance about the same. Be that as it may, it has no affect on the present petition.

15. In view of the above, this Court is of the view that the impugned orders have been passed in accordance with law and after considering the pleadings and material on record appropriately, which does not suffer from any illegality or error and call for any interference by this Court.

16. The writ petition is misconceived and is accordingly dismissed.

Order Date :- 7.4.2025

Arvind

(Rajnish Kumar, J.)