State of U.P. and Another v. Party

1. Heard Sri Rakesh Pathak, learned counsel for the applicant as well as Sri Vikas Sharma, learned State Law Officer for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the entire proceedings of Case No. 147306 of 2022 arising out of Case Crime No.185 of 2020, Under Sections 379 & 427 I.P.C., Police Station. Chakeri, District.Kanpur Nagar, Charge sheet dated

13.07.2022 and cognizance order as well as summoning order dated

10.10.2022 passed by Chief Metropolitan Magistrate, Kanpur Nagar pending in the court of Chief Judicial Magistrate, Kanpur Nagar.

3. The case of the applicant is that a first information report bearing No. 0185 of 2020 dated 14.03.2020 was lodged at 20.14 hours under Sections 379 and 427 IPC, relatable to the commission of the offences from

16.02.2020 to 2.03.2020 with an allegation that the opposite party No.2 is a co-sharer/owner of the Arazi No.402 ad measuring 3200 square yards over which a boundary wall have been constructed about having 3 feet height and on 16.02.2020 the applicant herein who had to go along with one of the unknown accused in the first information report had demolished certain portion of the wall and though a complaint was lodged before the Station House Officer, Chakeri on 17.02.2020 but no action was taken and on 2.03.2020 at 3.30 the applicant herein along with 100 other persons along with a JCB machine came to the Arazi and demolished the wall which was constructed over 3200 square yards, a complaint was made by dialing No. 112 and the police personnel came, at that time when they came the entire boundary was demolished. However 2 A482 No. 451 of 2025 without taking any action the police personnel went away and the applicant herein took approximately half of the bricks and got it spread in the pond and other half was also taken away. The applicant is alleged to have also taken Maurang and broken the plastic chairs which were seven in number and the said incident took place for about 2 hours.

4. Post lodging of the first information report the statement of the applicant was recorded under Section 161 Cr.P.C. followed by the Majid statement and of the independent witnesses, Sri Vishwajit son of Jai Dev Pal, Pappu son of Chaitu, Avanish Singh Bhadoria, Ravindra, Manjeet, and Mahendra thereafter a charge sheet came to be submitted against the applicant on 13.7.2022 in Case Crime No. 185 of 2020, under Section 379 read with Section 427 IPC while summoning the applicant on 10.10.2022 by the Chief Judicial Magistrate Kanpur Nagar.

5. Questioning the charge sheet as well as the summoning order the present application has been preferred.

6. Learned counsel for the applicant has submitted that the Arazi in question being Khasra no. 402 is a Minjumla in which besides the opposite party no.2 applicant there are other co-sharers and in case there happened to be any dispute then the same would be of demarcation for which appropriate remedy is already available under the provisions of U.P. Revenue Code 2006 while preferring proceedings before under Section 24 of the U.P. Revenue Code, 2006 and the authority empowered under the said statute has the power to restore possession and to pass incidental orders.

7. Submission is that a civil dispute has been given a criminal tinch as it is not a case wherein the applicant happens to be a stranger or an encroacher as the applicant and the opposite party no.2 along with the others are co- sharers of the said Arazi. It is also contended that it is hardly possible, rather impossible for a prudent man to imagine that the applicant would get an assembly of more than 100 people to demolish a wall and the same would remain unnoticed and no action would be taken by the police.

8. It is submitted that the area which is being talked about is an agricultural land and there cannot be a 3 feet boundary in normal circumstances over such a huge plot that too a Minjumla. It is also stated that no offences under section 379 or 427 are made out particularly when the entire allegations referable to the ingredients of Section 379 are 3 A482 No. 451 of 2025 absolutely lacking and so much so with respect to the offences under Section 427 of the IPC there happens to be no act or omission of mischiefs causing damage and the entire story so planted has no legs to stand. Learned counsel for the applicant as per the instructions, submits that the applicant shall be preferring discharge application seeking discharge.

9. Learned State Law Officer on the other hand submits that a perusal of the allegations contained in the first information report offences are made out under Section 379 read with Section 427 of the IPC particularly when though as per the Khatauni Arazi happens to be a Minjumla but that does not mean that no offences would be said to have been committed particularly when the boundary wall is being demolished. He further submits that with regard to the offences under Sections 379 and 427 IPC regarding demolition of the boundary wall and creating nuisance coupled with theft of the bricks and the Mourang the penal sections stands attracted and further merely because the Arazi is Minjujla it will not exclude the criminal courts to summon the applicant on the pretext that a remedy for demarcation stands provided under Section 24 of the U.P. Revenue Code. He however, submits that it is for the applicant to prefer a discharge application seeking discharge.

10. Having heard the submissions so made across the Bar and after perusing the record and bearing in mind the over all facts situation in the opinion of the Court it would not be appropriate to go into the factual issues thus, the application stands disposed of directing the applicants to submit a discharge application by 26.9.2025. On the receipt of the said motion, the court below shall decide the discharge application.

11. Till the disposal of discharge application, no coercive action be taken against the applicant with respect to the Case No. 147306 of 2022 arising out of Case Crime No.185 of 2020, Under Sections 379 & 427 I.P.C., Police Station. Chakeri, District.Kanpur Nagar, Charge sheet dated

13.07.2022 and cognizance order as well as summoning order dated

10.10.2022 passed by Chief Metropolitan Magistrate, Kanpur Nagar pending in the court of Chief Judicial Magistrate, Kanpur Nagar.

12. The protection accorded to the applicant is only available subject to compliance of terms and conditions and timeline as provided herein and in case of default, the order shall stand vacated without reference to the 4 A482 No. 451 of 2025 (Vikas Budhwar,J.) Bench. August 29, 2025 piyush

1. Heard Sri Rakesh Pathak, learned counsel for the applicant as well as Sri Vikas Sharma, learned State Law Officer for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the entire proceedings of Case No. 147306 of 2022 arising out of Case Crime No.185 of 2020, Under Sections 379 & 427 I.P.C., Police Station. Chakeri, District.Kanpur Nagar, Charge sheet dated

13.07.2022 and cognizance order as well as summoning order dated

10.10.2022 passed by Chief Metropolitan Magistrate, Kanpur Nagar pending in the court of Chief Judicial Magistrate, Kanpur Nagar.

3. The case of the applicant is that a first information report bearing No. 0185 of 2020 dated 14.03.2020 was lodged at 20.14 hours under Sections 379 and 427 IPC, relatable to the commission of the offences from

16.02.2020 to 2.03.2020 with an allegation that the opposite party No.2 is a co-sharer/owner of the Arazi No.402 ad measuring 3200 square yards over which a boundary wall have been constructed about having 3 feet height and on 16.02.2020 the applicant herein who had to go along with one of the unknown accused in the first information report had demolished certain portion of the wall and though a complaint was lodged before the Station House Officer, Chakeri on 17.02.2020 but no action was taken and on 2.03.2020 at 3.30 the applicant herein along with 100 other persons along with a JCB machine came to the Arazi and demolished the wall which was constructed over 3200 square yards, a complaint was made by dialing No. 112 and the police personnel came, at that time when they came the entire boundary was demolished. However 2 A482 No. 451 of 2025 without taking any action the police personnel went away and the applicant herein took approximately half of the bricks and got it spread in the pond and other half was also taken away. The applicant is alleged to have also taken Maurang and broken the plastic chairs which were seven in number and the said incident took place for about 2 hours.

4. Post lodging of the first information report the statement of the applicant was recorded under Section 161 Cr.P.C. followed by the Majid statement and of the independent witnesses, Sri Vishwajit son of Jai Dev Pal, Pappu son of Chaitu, Avanish Singh Bhadoria, Ravindra, Manjeet, and Mahendra thereafter a charge sheet came to be submitted against the applicant on 13.7.2022 in Case Crime No. 185 of 2020, under Section 379 read with Section 427 IPC while summoning the applicant on 10.10.2022 by the Chief Judicial Magistrate Kanpur Nagar.

5. Questioning the charge sheet as well as the summoning order the present application has been preferred.

6. Learned counsel for the applicant has submitted that the Arazi in question being Khasra no. 402 is a Minjumla in which besides the opposite party no.2 applicant there are other co-sharers and in case there happened to be any dispute then the same would be of demarcation for which appropriate remedy is already available under the provisions of U.P. Revenue Code 2006 while preferring proceedings before under Section 24 of the U.P. Revenue Code, 2006 and the authority empowered under the said statute has the power to restore possession and to pass incidental orders.

7. Submission is that a civil dispute has been given a criminal tinch as it is not a case wherein the applicant happens to be a stranger or an encroacher as the applicant and the opposite party no.2 along with the others are co- sharers of the said Arazi. It is also contended that it is hardly possible, rather impossible for a prudent man to imagine that the applicant would get an assembly of more than 100 people to demolish a wall and the same would remain unnoticed and no action would be taken by the police.

8. It is submitted that the area which is being talked about is an agricultural land and there cannot be a 3 feet boundary in normal circumstances over such a huge plot that too a Minjumla. It is also stated that no offences under section 379 or 427 are made out particularly when the entire allegations referable to the ingredients of Section 379 are 3 A482 No. 451 of 2025 absolutely lacking and so much so with respect to the offences under Section 427 of the IPC there happens to be no act or omission of mischiefs causing damage and the entire story so planted has no legs to stand. Learned counsel for the applicant as per the instructions, submits that the applicant shall be preferring discharge application seeking discharge.

9. Learned State Law Officer on the other hand submits that a perusal of the allegations contained in the first information report offences are made out under Section 379 read with Section 427 of the IPC particularly when though as per the Khatauni Arazi happens to be a Minjumla but that does not mean that no offences would be said to have been committed particularly when the boundary wall is being demolished. He further submits that with regard to the offences under Sections 379 and 427 IPC regarding demolition of the boundary wall and creating nuisance coupled with theft of the bricks and the Mourang the penal sections stands attracted and further merely because the Arazi is Minjujla it will not exclude the criminal courts to summon the applicant on the pretext that a remedy for demarcation stands provided under Section 24 of the U.P. Revenue Code. He however, submits that it is for the applicant to prefer a discharge application seeking discharge.

10. Having heard the submissions so made across the Bar and after perusing the record and bearing in mind the over all facts situation in the opinion of the Court it would not be appropriate to go into the factual issues thus, the application stands disposed of directing the applicants to submit a discharge application by 26.9.2025. On the receipt of the said motion, the court below shall decide the discharge application.

11. Till the disposal of discharge application, no coercive action be taken against the applicant with respect to the Case No. 147306 of 2022 arising out of Case Crime No.185 of 2020, Under Sections 379 & 427 I.P.C., Police Station. Chakeri, District.Kanpur Nagar, Charge sheet dated

13.07.2022 and cognizance order as well as summoning order dated

10.10.2022 passed by Chief Metropolitan Magistrate, Kanpur Nagar pending in the court of Chief Judicial Magistrate, Kanpur Nagar.

12. The protection accorded to the applicant is only available subject to compliance of terms and conditions and timeline as provided herein and in case of default, the order shall stand vacated without reference to the 4 A482 No. 451 of 2025 (Vikas Budhwar,J.) Bench. August 29, 2025 piyush