HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.6155 OF 2020
ORDER:
1. This Petition is filed by the petitioner to quash the proceedings filed against him by Police Station, Narsingi in Crime No.415/2015 for the offences under Sections 447, 427 of IPC and Section 3 of the A.P.Land Grabbing (Prohibition) Act, 1982.
2. On the basis of the complaint given by Manager of Osman Sagar Lake, Crime No.415 of 2015 was registered on 19.08.2015. Briefly, the allegations against the petitioner are that the petitioner has criminally trespassed and was illegally constructing compound wall by dumping gravel at FTL Coordination Point No.656 towards Srinagar Colony area of Osmana Sagar lake, which is prohibited within the FTL Area. Accordingly, requested to take appropriate action.
3. The police, having issued notice under Section 41-A of Cr.P.C to the petitioner, concluded investigation and filed charge sheet for the offences as mentioned above.
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4. Sri P.Gangaiah Naidu, learned Senior Counsel appearing on behalf of Smt.G.Bhanu Priya, the counsel on record, submits that firstly, the police has done table investigation without even issuing Section 41-A Cr.P.C notice. Though, it was claimed that Section 41- A notice was issued, no such notice was given and the police have violated the mandatory provisions of issuing notice. The petitioner is the owner of the subject land and there cannot be any trespass in one's own land. He also submits that the learned Magistrate has erred in taking cognizance of the offences without giving reasons. He further submits that Section 3 of the A.P.Land Grabbing (Prohibition) Act, 1982 can only be tried by a Special Court. In support of his contentions, he relied on the judgments reported in the cases of: i) State of Haryana v. Bhajan Lal [ 1992 Supp(1) Supreme Court Cases 335] and argued that where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings, such proceedings can be quashed.
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ii) M.Yadagiri Reddy v. V.C.Brahmanna and another [ 2005 (1) ALD 1 (DB)], this Court held as follows:
"19. It is observed in clear and categorical terms that merely not being entitled to get the possession itself is not enough to hold a person to be a land grabber unless the possession was taken with an intention to enter into possession illegally. The mere fact of legally not entitled to the possession would not fulfil the ingredients of the definition 'land grabber' and 'land grabbing'. Mere fact that one is not lawfully entitled to enter into possession would not be enough to characterize one to be a land grabber and such entry does not amount to land grabbing unless possession is illegally taken with that view in mind. The person taking possession must know that he is acting illegally while taking possession of the land."
5. Learned Senior Counsel finally argued that both on facts and law, the case against petitioner is unsustainable and has to be quashed.
6. On the other hand, Sri S.Sudershan, learned Additional Public Prosecutor submits that it is specifically mentioned in the charge sheet that Section 41-A of Cr.P.C notice has been issued and after investigation was concluded, charge sheet was filed on the basis of evidence available and for the said reason, petitioner being a land grabber, present petition to quash the proceedings should not be entertained.
7. Learned Senior Counsel submits that Section 41-A of Cr.P.C notice was not issued, however, it is specifically mentioned in the 4 charge sheet that notice was issued to the petitioner, pursuant to which, charge sheet was filed. It is the question of fact to be ascertained during the course of trial by the concerned court trying the petitioner for the offence alleged. The said aspect can also be agitated at the stage of Section 239 Cr.P.C proceedings.
8. As seen from the cognizance order of the learned Magistrate, learned Magistrate has taken cognizance of the said offences on the basis of the office note dated 18.10.2016, whereby office has put up note as follows:
"Honoured Sir, Original F.I.R and Complaint is filed, List of Witnesses LW1 and LW2 is filed, List of Panch for scene, LW3 and LW4 is filed, Charge Sheet checked and found correct. U/sec: 447, 427 of IPC and Sec 3 of A.P.Land Grabbing Act.
Date: 18.10.2016 Taken on file as CC.No.532/2016 for the offence U/Sec: 447, 427 of IPC and Sec 3 of A.P.Land Grabbing Act against the sole accused issue summons. Cal on 06.12.2016."
9. Taking cognizance of an offence cannot be as a matter of right without ascertaining whether the allegations made in the charge sheet and the documents filed under Section 207 of Cr.P.C make out an offence against the accused or not. It is not necessary that a 5 detailed order has to be written by giving facts and narrating the allegations against the accused. However, it is the bounden duty of the learned Magistrate to prima facie come to a conclusion that on the basis of the charge sheet and the other documents filed along with charge sheet, a case is made out for taking cognizance. As already observed, it is not necessary for a Magistrate to list out the allegations made and how the offences are attracted. However, the Magistrate has to record that he has gone through the charge sheet and other documents filed by the police and is satisfied about the case against the accused. The said satisfaction need not be elaborate, but a precise note of the satisfaction arrived at by the Magistrate.
10. In the said circumstances, the cognizance order of the learned Magistrate dated 18.10.2016 is hereby set aside and the Magistrate is directed to take cognizance in accordance with the observations made above.
11. It is not in dispute that any proceedings under the A.P.Land Grabbing Act shall be tried by a Special Court. However in the event of the XVI Additional Metropolitan Magistrate, Cyberabad, 6 Rajendernagar, who has taken cognizance of the charge sheet filed against the petitioner is not notified as a Special Court to try an offence under the Provisions of the A.P.Land Grabbing (Prohibition) Act, 1982, the said charge sheet has to be returned to be filed before the concerned Court.
12. With the above directions, the Criminal Petition is disposed off. As a sequel thereto, miscellaneous petitions, if any, pending, shall stands closed.
__________________ K.SURENDER, J Date: 08.11.2022 kvs 7 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL PETITION No.6155 OF 2010 Date: 08.11.2022.
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