Allahabad High Court
Rakesh Chandra Dubey vs State Of U.P. And 3 Others on 11 August, 2023
Bench: Anjani Kumar Mishra, Vivek Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:163082-DB
Court No. - 43
Case :- CRIMINAL MISC. WRIT PETITION No. - 12722 of 2023
Petitioner :- Rakesh Chandra Dubey
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Rajesh Prasad Yadav
Counsel for Respondent :- G.A.
Hon'ble Anjani Kumar Mishra,J.
Hon'ble Vivek Kumar Singh,J.
1. Heard learned counsel for hte petitioner, learned counsel for the first informant and learned AGA for the State.
2.The instant writ peititon seeks quashing of the FIR dated 10.07.2023 giving rise to Case Crime No. 59 of 2023, under Sections 3/5 of the Prevention of Damages to Public Property Act, 1984, Police Station Sigramau, District Jaunpur.
3.The contention of counsel for the petitioner is that no offence under Sections 3/5 of the Prevention of Damages to Public Property Act, is made out. It is also contended that the first information report alleges unauthorized occupation and constructions over the plot No. 0674, area 1.862 hectare out of which 0.040 hectares has been encroached upon. It is contended that Section 67 of the UP Revenue Code, 2007 alone can be invoked for eviction and, therefore, the proceedings are malicious.
4.Learned AGA has opposed the writ petition.
5.Perusal of the record reveals that there is an order of eviction of the petitioners' father and his uncles from the land in question. This order has been passed by the Assistant Collector First Class/ Tehsildar, Badlapur, Jaunpur on 17.02.2023.
6.It has also been alleged that a recall application has been filed by the petitioner on the ground that his father was dead and no notice of the proceedings was served upon him .
7. What is interesting to note that although the eviction order has been passed against the father and uncles of the petitioner, all sons of one Kamal Prasad, it is only the petitioner who has filed the recall application. It is, therefore, clear that the petitioner is trying to hide behind technicalities.
8.However be that as it may the first information report cannot said to be malicious.
9.The other contention for consideration is that no offence under Section 3/5 of the Prevention of Damages to Public Property Act, is made out.
10.This aspect has been considered earlier of a Division Bench of this Court in Criminal Misc. Writ Petition No. 1131 of 2020 : Devnath Yadav vs. State of UP and 3 Others wherein it has been observed that as follows:-
"Therefore, in our considered opinion, the two provisions, namely, 67 of the Revenue Code and Sections 2,3 and 5 of the Prevention of Damage to Public Property Act operate in different fields. In case the legislature in its wisdom, considered it fit to declare any action to be also a criminal act, the same, does not require to be read down or its scope to be narrowed down. Since, the two provisions operate in different spheres, it cannot be accepted that there is any overlap. There is no bar for the institution and prosecution of Civil and Criminal proceedings regarding an act, if both have the mandate of law. In any case, an act can given rise to both criminal and civil liability and therefore, both civil and criminal proceedings can be resorted to simultaneously."
11.The same judgement also hold as follows:-
"With a view to curb acts of vandalism and damage to public property, including destruction and damage caused during riots and public commotion, a need was felt to strengthen the law to enable the authorities to deal effectively with cases of damage to public property.
The use of the word "including" has been given a restrictive interpretation in the judgment cited. We are of the opinion that the said word is illustrative rather bringing also within its ambit, "destruction and damage caused during riots and public commotion" as stated in the Statement of Objects and Reasons. The use of word "including" therefore, cannot be read to mean that the Prevention of Damage to Public Property Act can be invoked only where damage to public property is occasioned by vandalism, riots or public commotion."
12.Under the circumstances and in view of the aforenoted judgment it cannot be held that Sections 3/5 of the Prevention of Damages to Public Property Act cannot be invoked, in the facts and circumstances of the instant case.
13.Under the circumstances, there is no merit in the writ petition. It is accordingly dismissed.
Order Date :- 11.8.2023 / Priyanka
