Arun Kumar Agrahari vs State Of U.P. And Another
2023 Latest Caselaw 27969 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:195684
 
Court No. - 86
 

 
Case :- APPLICATION U/S 482 No. - 36564 of 2023
 

 
Applicant :- Arun Kumar Agrahari
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Ram Babu Yadav,Om Prakash Vishwakarma
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajiv Gupta,J.

1. Heard learned counsel for the applicant, learned AGA for the State and perused the record.

2. The present application u/s 482 Cr.P.C. has been filed with the prayer to quash summoning order dated 09.08.2023 and charge-sheet dated 22.07.2023 as well as entire proceedings of Case No. 267 of 2023 (State Vs. Arun Kumar Agrahari), arising out of Case Crime No. 60 of 2023, under Section 3/5 Prevention of Damage to Public Property Act, 1984, Police Station Sigramau, District Jaunpur, pending in the court of A.C.J.M.III, Jaunpur.

3. As per the allegations made in the FIR as well as statements of the witnesses recorded under Section 161 Cr.P.C. it is alleged that Shashidhar Mishra was posted as Lekhpal in area 171, village Mishralui. It is further alleged by the first informant (Lekhpal) that in plot no.278 area 0.202 hectare of land, area 0.020 hectare is allotted to the Department of Tele-communication, however, the land belonging to Department of Tele-communication has illegally been encroached by the applicant and even on repeated request, the applicant has not removed his encroachment from the said land in respect of which order dated 10.07.2023 has also been passed by S.D.M., Badlapur. On the basis of the said allegations and encroachment made by the applicant, a case under Section 3/5 of the Prevention of Damage to Public Property Act, 1984 (in short 'Act') has been registered against the applicant. After registration of the said FIR, the Police recorded the statement of the witnesses, particularly, the Lekhpal of the concerned area, who reiterated the said allegations in his statement recorded under Section 161 Cr.P.C. It is further stated that on account of encroachment made by the applicant on the land belonging to the Department of Tele-communication, serious damage is being caused to the public property.The police after concluding the investigation submitted charge-sheet against the applicant, on the basis of which, learned Magistrate has taken cognizance for the offence under Section 3 of the Act and summoned the applicant to face trial vide order dated 09.08.2023.

4. Being aggrieved and dissatisfied by the said order, the present application u/s 482 Cr.P.C has been filed by the applicant.

5. Learned counsel for the applicant has submitted that the allegations made in the FIR as well as statement of the witnesses are absolutely false, cooked up and concocted. He has further submitted that no encroachment on public land, which has been alleged to be allotted to the Department of Tele-communication, has been made by him rather, no demarcation has been made, therefore, proceedings under Section 3 of the Act is wholly illegal and liable to be set aside.

6. Learned counsel for the applicant has next contended that a detailed procedure is prescribed under the Revenue Code, 2006 for eviction of unoccupied occupants from the Government land, therefore, the FIR should not have been lodged against the applicant and the charge-sheet, based on the said FIR, is abuse of process of law and is liable to be set aside.

7. Learned counsel for the applicant has further submitted that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, no offence is disclosed against the applicant and the present case has been instituted with a malafide intention for the purpose of harassment. He has pointed out certain documents and statements in support of his contention, as such, impugned charge sheet, summoning order as well as entire proceedings be quashed.

8. In order to buttress his argument, learned counsel for the applicant has relied upon the decision reported in Allahabad Criminal Cases 455, Munshi Lal and Another Vs. State of U.P. and Another and in another decision in Application u/s 482 No. 398 of 2023 Prabhakant and Another Vs. State of U.P. and Another.

9. Learned counsel for the applicant has next submitted that in view of the law laid down in the said two cases, the proceedings as against the applicant under Section 3 of the Act is wholly illegal and liable to be set aside.

10. Per contra, learned AGA has vehemently opposed the said prayer and has supported the impugned order. He has further submitted that from the allegations made in the FIR as well as statements of the Area Lekhpal recorded u/s 161 Cr.P.C., prima facie offence is clearly disclosed against the applicant. He has further submitted that even in the FIR as well as the statement of the witness recorded under Section 161 Cr.P.C., it has been clearly stated by the Area Lekhpal that in plot no.278 area 0.202 hectare, area 0.020 hectare has been allotted to the Department of Tele-communication and thus, it is evident from the allegations itself that specific demarcation in respect of the land in question was made, which is alleged to have been illegally encroached by the applicant, who despite repeated request did not remove his encroachment and as such, the present case has been instituted against the applicant, which clearly discloses a cognizable offence and as such, the impugned order passed by the court below is just, proper and legal and do no suffer from any illegality or error of law and, therefore, cannot be quashed.

11. Learned AGA has further submitted that proceedings for eviction of unoccupied occupants under Section 67 of the Revenue Code, 2006 are summary proceedings and that the provisions of the Act can be simultaneously invoked against an unauthorised occupants if the bundle of facts alleged constitute offence under the Act. It is further pertinent to point out here that a person can be sentenced to imprisonment under the Act, which cannot be done under the provisions of the Revenue Code, 2006, wherein it has been stated that admittedly the land in question is public land and any encroachment thereon is wholly illegal and has diminished its value or utility. The act of the applicant is therefore, covered by Section 425 of the Indian Penal Code. Therefore, there is no doubt that the encroachment by the applicant over the land belonging to the Department of Tele-communication amounts to a mischief within the meaning of the term under Section 425 IPC.

12. Moreover, at this stage, only prima facie case is to be seen in the light of the law laid down by the Supreme Court in the cases ofR.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cr.) 192and lastlyZandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage.

13. Having considered the rival submissions made by the parties and taking into consideration, the specific allegations made in the FIR as well as statement of the area Lekhpal, it is evident that the area belonging to the Departmentof Tele-communication has been clearly demarcated to be 0.020 hectare in plot no.278 by the area Lekhpal, which has been illegally encroached by the applicant for which offence under Section 3 of the Act has been instituted against him. It is further germane to point out here that case of Munshilal (supra) relied upon by the counsel for the applicant has already been overruled by a Division Bench of this Court in Criminal Misc. Writ Petition No.1131 of 2021 (Devnath Yadav Vs. State of U.P. and 3 others).

14. Section 3(1) of the Prevention of Damage to Public Property Act, 1984 provides that whoever commits mischief in respect of any public property shall be punished with imprisonment for a term upto five years with fine.

15. It is further held in the judgment of Devnath Yadav (supra) "that it is no doubt true that Section 67 of the Revenue Code, 2006 provides a complete procedure for eviction of unauthorized occupants, which may or may not be public utility land. The said provision is only for eviction and for recovery of damages on account of such unauthorized occupation and user of land belonging to the State. It is a purely civil remedy with no criminality, attached. The same encroachment, of public utility land, under the Prevention of Damage to Public Property Act, is a criminal offence, visited by penal consequences, namely, imprisonment and fine. Besides, no order for eviction of an unauthorized occupant can be passed under the Prevention of Damage to Public Property Act. Therefore, in my 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."

16. The other case law cited by the learned counsel for the applicant is also distinguishable on facts enumerated above.

17. Thus, I find that in view of Section 425 of IPC and Section 3(1) of the Prevention of Damage to Public Property Act, 1984, the action of the applicant clearly falls within the purview of these two sections.

18. In view of the foregoing discussion and the principle of law laid down by the Division Bench of this Court, the offence under Section 3 of the Act is clearly made out against the applicant and as such, the entire proceedings including the summoning order cannot be quashed in exercise of the power u/s 482 Cr.P.C.

19. The present application u/s 482 Cr.P.C. is devoid of merits and is accordingly dismissed.

Order Date :- 11.10.2023

Subham