Mohd Javed v. State Of U.P. Thru. Addl. Chief Secy. Home Deptt. Govt. Of U.P. Lko. And

1. Heard learned counsel for the applicant, learned A.G.A. for the State and learned counsel appearing for the complainant.

2. This application has been filed seeking following prayer. "Wherefore, it is most humbly and respectfully prayed that this Hon'ble Court may kindly be quashed the order dated 16.09.2025 under Section 164(1) BNSS passed in case no 22/2025 under section 164 BNSS Police Station Alambagh Lucknow contained as Annexure no 1 and this Hon'ble Court may Kindly further be pleased to quash the police report dated 10.09.2025 forwarded by Police of police station Alambagh Lucknow under section 164 BNSS in the interest of justice contained as Annexure no.2 to this petition. Otherwise the petitioner will suffer great irreparable loss and injury."

3. Learned counsel for the applicant submits that applicant purchased the property in question from the owner of the property, namely, Sushil Bhatia, Anshu Bhatia and Amit Bhatia. It is further submitted that the private respondent is a land grabber and was trying to grab the property in question, for which, he filed a suit for permanent injunction against some unidentified persons showing them as owner of the property. The said suit was dismissed, against which, appeal was preferred, which was also dismissed. Thereafter, an application for restoration was filed, which is pending before the trial court. It is vehemently submitted that since the applicant was being threatened, he filed an application before the concerned police Officer, in which, inquiry was conducted by 2 NA528 No. 1644 of 2025 Assistant Commissioner of Police, Cant., Lucknow and submitted the report to the Joint Commissioner of Police, Law & Order, Commissionerate, Lucknow on 12.08.2025, with the observation that respondent no. 2 is having no right over the property in question. Thereafter, respondent no. 2 preferred application under Section 164 BNSS (Section 143 Cr.P.C.) on the basis of incorrect facts with the averment that there is possibility of breach of peace, therefore, appropriate order may be passed. On the said application, report was sought from the concerned police station, but a vague report was submitted by the Sub-Inspector, P.S. Alambagh, Lucknow requesting that the proceeding may be initiated under Section 164 BNSS to avoid breach of peace. It is vehemently submitted by the learned counsel for the applicant that the said report, notice was issued by the Deputy Commissioner/Executive Magistrate, (Madhya), Police Commissionerate, Lucknow in arbitrary and illegal manner. Relying on the decisions of this Court in the case of Aman Deep Singh Shishya Vs. State of U.P. & Anr., (Application u/s 482 No. 9198 of 2021), learned counsel for the applicant submits that once the issue is pending before the civil court, the proceeding under Sections 164 BNSS should not be initiated. It is, thus, submitted that the indulgence of this Court is necessary.

4. Learned A.G.A. as well as learned counsel for the complainant oppose the prayer of the applicant and submit that only notice has been issued by the Executive Magistrate under the provisions of Section 164 (1) BNSS and despite repeated opportunities, no reply has been filed by the applicant. Learned counsel for the complainant, relying on the decision of this Court in the case of Maan Babu Dubey Vs. State of U.P. & Ors., (Criminal Revision No. 703 of 2001), submits that proper course available to the applicant is to file objection before the Executive Magistrate explaining all the facts including the pendency of civil litigation as well as other reports. It is, thus, submitted that the 3 NA528 No. 1644 of 2025 application is liable to be dismissed.

5. Considering the arguments advanced by the learned counsel for the applicant, learned A.G.A., learned counsel for the complainant and going through the contents of the application, judgments relied by the learned counsel for the parties as well as other relevant documents, it is evident that notice under Section 164(1) BNSS has been issued by the Deputy Commissioner/Executive Magistrate, (Madhya), Police Commissionerate, Lucknow on the basis of report of the local police. Section 164 BNSS is reproduced as under. "164. Procedure where dispute concerning land or water is likely to cause breach of peace. (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by an advocate on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. (2) For the purposes of this section, the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. (3) A copy of the order shall be served in the manner provided by this Sanhita for the service of summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. (4) The Magistrate shall, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute:Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub- section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1). (5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid 4 NA528 No. 1644 of 2025 exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final. (6)(a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject of dispute, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed; (b) the order made under this sub-section shall be served and published in the manner laid down in sub-section (3). (7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto. (8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale- proceeds thereof, as he thinks fit. (9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing. (10) Nothing in this section shall be deemed to be in derogation of powers of the Magistrate to proceed under section 126."

6. Section 164 BNSS clearly provides that, in case, there is a likelihood of disturbance or breach of peace, the competent authority may proceed under the aforesaid provision. Further, as the notice was issued on the basis of police report, sub-section (4) of Section 164 provides that, in case, reply/objection is filed, the same shall be considered and decided by the competent authority. Moreover, admittedly, all factual aspects cannot be considered at this stage.

7. In view of above facts and discussions, as till now, the notice has been issued on 16.09.2025 and the applicant is having opportunity to file reply to the same, the applicant is at liberty to file 5 NA528 No. 1644 of 2025 a comprehensive reply to the said notice within a period of one week from today. In case, any such reply is filed, the same shall be considered and decided by the authority concerned within a period of one week thereafter, strictly in accordance with law.

8. With the directions aforesaid, the present application stands disposed of. November 25, 2025 VKS (Rajeev Singh,J.) VIVEK KUMAR SRIVASTAVA VIVEK KUMAR SRIVASTAVA High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

1. Heard learned counsel for the applicant, learned A.G.A. for the State and learned counsel appearing for the complainant.

2. This application has been filed seeking following prayer. "Wherefore, it is most humbly and respectfully prayed that this Hon'ble Court may kindly be quashed the order dated 16.09.2025 under Section 164(1) BNSS passed in case no 22/2025 under section 164 BNSS Police Station Alambagh Lucknow contained as Annexure no 1 and this Hon'ble Court may Kindly further be pleased to quash the police report dated 10.09.2025 forwarded by Police of police station Alambagh Lucknow under section 164 BNSS in the interest of justice contained as Annexure no.2 to this petition. Otherwise the petitioner will suffer great irreparable loss and injury."

3. Learned counsel for the applicant submits that applicant purchased the property in question from the owner of the property, namely, Sushil Bhatia, Anshu Bhatia and Amit Bhatia. It is further submitted that the private respondent is a land grabber and was trying to grab the property in question, for which, he filed a suit for permanent injunction against some unidentified persons showing them as owner of the property. The said suit was dismissed, against which, appeal was preferred, which was also dismissed. Thereafter, an application for restoration was filed, which is pending before the trial court. It is vehemently submitted that since the applicant was being threatened, he filed an application before the concerned police Officer, in which, inquiry was conducted by 2 NA528 No. 1644 of 2025 Assistant Commissioner of Police, Cant., Lucknow and submitted the report to the Joint Commissioner of Police, Law & Order, Commissionerate, Lucknow on 12.08.2025, with the observation that respondent no. 2 is having no right over the property in question. Thereafter, respondent no. 2 preferred application under Section 164 BNSS (Section 143 Cr.P.C.) on the basis of incorrect facts with the averment that there is possibility of breach of peace, therefore, appropriate order may be passed. On the said application, report was sought from the concerned police station, but a vague report was submitted by the Sub-Inspector, P.S. Alambagh, Lucknow requesting that the proceeding may be initiated under Section 164 BNSS to avoid breach of peace. It is vehemently submitted by the learned counsel for the applicant that the said report, notice was issued by the Deputy Commissioner/Executive Magistrate, (Madhya), Police Commissionerate, Lucknow in arbitrary and illegal manner. Relying on the decisions of this Court in the case of Aman Deep Singh Shishya Vs. State of U.P. & Anr., (Application u/s 482 No. 9198 of 2021), learned counsel for the applicant submits that once the issue is pending before the civil court, the proceeding under Sections 164 BNSS should not be initiated. It is, thus, submitted that the indulgence of this Court is necessary.

4. Learned A.G.A. as well as learned counsel for the complainant oppose the prayer of the applicant and submit that only notice has been issued by the Executive Magistrate under the provisions of Section 164 (1) BNSS and despite repeated opportunities, no reply has been filed by the applicant. Learned counsel for the complainant, relying on the decision of this Court in the case of Maan Babu Dubey Vs. State of U.P. & Ors., (Criminal Revision No. 703 of 2001), submits that proper course available to the applicant is to file objection before the Executive Magistrate explaining all the facts including the pendency of civil litigation as well as other reports. It is, thus, submitted that the 3 NA528 No. 1644 of 2025 application is liable to be dismissed.

5. Considering the arguments advanced by the learned counsel for the applicant, learned A.G.A., learned counsel for the complainant and going through the contents of the application, judgments relied by the learned counsel for the parties as well as other relevant documents, it is evident that notice under Section 164(1) BNSS has been issued by the Deputy Commissioner/Executive Magistrate, (Madhya), Police Commissionerate, Lucknow on the basis of report of the local police. Section 164 BNSS is reproduced as under. "164. Procedure where dispute concerning land or water is likely to cause breach of peace. (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by an advocate on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. (2) For the purposes of this section, the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. (3) A copy of the order shall be served in the manner provided by this Sanhita for the service of summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. (4) The Magistrate shall, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute:Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub- section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1). (5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid 4 NA528 No. 1644 of 2025 exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final. (6)(a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject of dispute, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed; (b) the order made under this sub-section shall be served and published in the manner laid down in sub-section (3). (7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto. (8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale- proceeds thereof, as he thinks fit. (9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing. (10) Nothing in this section shall be deemed to be in derogation of powers of the Magistrate to proceed under section 126."

6. Section 164 BNSS clearly provides that, in case, there is a likelihood of disturbance or breach of peace, the competent authority may proceed under the aforesaid provision. Further, as the notice was issued on the basis of police report, sub-section (4) of Section 164 provides that, in case, reply/objection is filed, the same shall be considered and decided by the competent authority. Moreover, admittedly, all factual aspects cannot be considered at this stage.

7. In view of above facts and discussions, as till now, the notice has been issued on 16.09.2025 and the applicant is having opportunity to file reply to the same, the applicant is at liberty to file 5 NA528 No. 1644 of 2025 a comprehensive reply to the said notice within a period of one week from today. In case, any such reply is filed, the same shall be considered and decided by the authority concerned within a period of one week thereafter, strictly in accordance with law.

8. With the directions aforesaid, the present application stands disposed of. November 25, 2025 VKS (Rajeev Singh,J.) VIVEK KUMAR SRIVASTAVA VIVEK KUMAR SRIVASTAVA High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench