Allahabad High Court
Mohd. Yunus And Others vs State Of U.P. Thru. Prin. Secy. Home ... on 16 May, 2024
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:37647
Court No. - 27
Case :- APPLICATION U/S 482 No. - 5166 of 2022
Applicant :- Mohd. Yunus And Others
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Secrtt. Lko. And Another
Counsel for Applicant :- Abdul Samad,Sonu Gupta,Syed Mohammad Abid
Counsel for Opposite Party :- G.A.,Bharat Kumar Dixit
Hon'ble Shamim Ahmed,J.
1. Heard Sri Abdul Samad, learned counsel for the applicants and Sri Akhilesh Kumar Vyas, learned A.G.A. for the State and perused the material on record.
2. This application under Section 482 of the Code of Criminal Procedure, 1973 has been filed for quashing of the Chargesheet no. 354 of 2021, dated 16.12.2021, filed by the investigating officer in F.I.R. No.0247 of 2021, U/S 2/3, the Prevention of Damage to Public Property Act, 1984, P.S.- Mohanganj, District-Amethi and also the Cognizance order dated 23.04.2022 passed by the learned Additional Civil Judge (J.D.)/ Judicial Magistrate, Rae Bareli in Criminal Case no. 7862 of 2022, arising out of the aforesaid F.I.R. The certified/typed copies of the aforesaid Charge sheet and the Cognizance order have been annexed alongwith this application as ANNEXURE No. 01 & 02.
3. Learned counsel for the applicants submits that the first information report has been lodged on the basis of false and frivolous allegations. The present F.I.R. is nothing but an abuse of process of law, only with a view to harass the applicants. It is further submitted that the property mentioned in the F.I.R. is subjudice, as the petitioner has filed Original Suit No. 1402 of 2019, (Mohd. Yunus Vs. Sahib Ali & Others) before the Court of learned Civil Judge (J.D.) Court No. 16, Raebareli, for permanent injunction and in the Board of Revenue, wherein the revision is pending and vide order dated 13.09.2021 the learned Board of Revenue has stayed the effect and operation of the order dated 12.02.2021 passed by the Sub Divisional Magistrate, Amethi.
4. The learned counsel further submits that the F.I.R. was lodged after the proceeding was aleady pending before the competent civil court for adjudication of the right and the matter is still pending. He also submits that even if it is assumed to be true that the applicants have illegally taken possession over the pond land, then also remedy before the authority concerned is to initiate proceeding under Section 67 of the U.P. Land Revenue Code 2006. In support of his arguments, learned counsel has placed judgment of a Coordinate Bench of of this Court in the case of Munshi Lal & anr. v. State of U.P. & anr., APPLICATION U/S 482 No. - 9964 of 2020 dated 6.8.2020, which reads as under-
?1. Heard Sri Rakesh Kumar learned Advocate for the applicants and learned A.G.A for the State respondents.
2. By means of the present application, the applicants seek for quashing of the charge sheet no. 1 of 2018 dated 20.1.2018 submitted in Case Crime No. 850 of 2017 as also the order dated 14.10.2019 in Criminal Case No. 2418 of 2019 (State vs. Kastoori Singh and others), whereby the Judicial Magistrate, Puwaya, Shahjahanpur has directed for appearance of the accused-applicants before him. The first information report dated 19.8.2017 namely Case Crime No. 850 of 2017 was lodged by the Lekhpal of Village Hardayal Kucha, Puwaya, Tehsil Puwaya, District Shahjahanpur alleging commission of offence under Section 447 I.P.C. and Section 2/3 of the Prevention of Damage to Public Property Act, 1984 (hereinafter referred as to "the P.D.P.P. Act, 1984"). The allegations in the F.I.R. are that the persons named therein including the applicants herein namely Munshi Lal and Kastoori Singh, both sons of Ganga Ram, resident of Village Diuhana, Police Station Banda, District Shahjahanpur had encroached plot no. 179 area 0.890 hectares, which is recorded as Banjar in the revenue records. The applicants had, thus, caused damage and loss to the public property which is the land vested in the Gram Sabha.
3. Seeking for quashing of the charge sheet, the main submission of learned counsel for the applicants is that the lodging of the first information report taking aid of provisions of the P.D.P.P. Act, 1984 is nothing but an abuse of process of the law, inasmuch as, the said provisions cannot be invoked to lodge a criminal case on the allegations of damage or loss caused to the Gram Sabha land. The Magistrate has acted illegally and without application of judicial mind in taking cognizance on the charge sheet submitted under Section 2/3 of the P.D.P.P. Act, 1984.
4. As far as the allegations of commission of offence of criminal trespass under Section 447 I.P.C. is concerned, it is contended that no such offence can be made out from the allegations in the first information report as even the date of entry of the applicants over the Gram Sabha land has not been indicated. Even otherwise, the names of the applicants over the plot in question namely Plot No. 179 area 0.3800 hectares has been recorded in the revenue records pursuant to an order dated 31.12.2013 under "Pa-Ka 11 Kha" being their ancestral property.
5. In any case, the question as to whether the land in dispute belongs to the applicants or they had illegally encroached upon the land vested in Gram Sabha, allegedly recorded as Banjar, can only be adjudicated by the revenue Court. The proper proceeding for eviction of the unauthorized occupant can be undertaken under Section 67 of the Revenue Code, 2006. The short cut procedure adopted by the Lekhpal of the village concerned is nothing but with a view to harass the applicants.
6. Having heard the learned counsel for the applicants and perused the record. At the out set, we may note that complete mechanism has been provided under Section 67 of the Revenue Code, 2006 empowering the Gram Sabha or any other authority to take possession of any land under the provisions of the Revenue Code, where such property is entrusted or deemed to be entrusted to a Gram Sabha or other local authority and is damaged or misappropriated by anyone. The Sub-Divisional Officer of the concerned Sub-Division is empowered to take action on the information received from the Bhumi Prabandhak Samiti or other authority or the Lekhpal concerned about such illegal occupation or damage or misappropriation of the Gram Sabha Land. In case, any person is found in occupation of any such land in contravention of the provisions of the Revenue Code, the Sub-Divisional Officer has to issue notice to the person concerned to show cause as to :- (i) why compensation for damage, misappropriation or wrongful occupation specified in the notice be not recovered from him? (ii) why he should not be evicted from such land?
7. The person to whom such a notice is issued under sub-section (2) of Section 67 of the Code, can submit his reply disclosing his right or title or the nature of occupation over the land in question. In that case, the Sub-Divisional Officer has to pass an order giving reasons for not accepting the explanation, if so, offered by the person concerned. The eviction from the land can only be ordered after disposal of the explanation offered by the person concerned keeping in line with the principles of natural justice by passing a reasoned and speaking order which shall disclose the application of mind by the Officer. The amount of compensation for damage or misappropriation of the property or for wrongful occupation, as the case may be, may be recovered from such person as arrears of land revenue. Under sub-section (4) of Section 67, the Officer is empowered to discharge the notice if he forms an opinion that the person showing cause is not guilty of causing the damage or misappropriation or wrongful occupation of the property in question. Any person aggrieved by the order of the Sub-Divisional Officer under sub-section (3) or sub-section (4) of Section 67 may prefer an appeal to the Collector within thirty days from the date of such order. The procedure for undertaking the proceedings under Section 67 of the Revenue Code, thus, is complete in itself and does not leave any scope for any further computation of damage for wrongful occupation, damage caused or misappropriation of Gram Sabha land.
8. Section 210 of the Revenue Code, 2006 confers supervisory power on the Board or the Commissioner to call for the record of any proceeding decided by the subordinate revenue court in which no appeal lies for the purpose of satisfying itself or himself as to the legality or propriety of any order passed in such suit or proceeding.
Chapter XV of the Revenue Code, 2006 talks of penalties for encroachment and provides that any person who encroaches upon or causes any obstruction to the use of any public land (including chak road), path or common land of the village, shall be liable to a fine minimum Rs. 500/- and not exceeding Rs. 2,000/- and in case of his repetitive act, the Sub-Divisional Officer or the Tehsildar may require him to execute a personal bond for a sum not exceeding of Rs. 5,000/-.
9. A careful reading of the provisions of the Revenue Code, 2006, thus, makes it clear that the proceeding for causing damage to the public property can be undertaken against any person who is in wrongful occupation of the same or causes damage or misappropriation to the said property. The nature of eviction proceeding under Section 67 of the Revenue Code, 2006 is, however, summary in nature. The rights of the parties claimed, if gives rise to a dispute requiring adjudication on the questions of fact, a suit for declaration has to be instituted against such person. The Gram Sabha may institute a suit under Section 145 of the U.P. Revenue Code, 2006 for declaration of its right or to seek any further relief. In case of institution of such a suit, a temporary injunction may be granted by the Court concerned to prevent wastage, damage or alienation of the suit property. The Revenue Code, 2006 is a Special enactment providing for the law relating to the 'land' defined under Section 4(14) of the Code.
10. As far as criminal proceeding for illegal encroachment, damage or trespass over the land belonging to Gram Sabha is concerned, the same can be undertaken but it would be subject to the adjudication of rights of the parties over the land in dispute as the said determination can be done only by the revenue Court.
11. As far as the P.D.P.P. Act, 1984 is concerned, the same has been enacted with the specific purpose. The statement of objects and reasons of the said Act shows that it was enacted 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 with cases of damage to public property. The "public property" as defined under Section 2(b) of the P.D.P.P. Act, 1984 means any property, whether immovable or movable (including any machinery) which is owned by or in possession of or under the control of the Central or State Government or any local authority or any Corporation or any institution established by the Central, Provincial or State Act or its undertaking. Section 3 of the P.D.P.P. Act, 1984 provides that anyone who commits mischief by doing any act in respect of any 'public property' including the nature referred in sub-section (2) in the said section shall be punished with imprisonment and a fine depending upon the nature of the property as per sub-section (1) and sub-section (2) of Section 3 of the P.D.P.P. Act, 1984. Section 4 provides punishment for an act of 'Mischief' causing damage to pubic property by fire or explosive substance. The P.D.P.P. Act, 1984 is, thus, a Special Act enacted to punish for the offence committed under Sections 3 and 4 of the said Act by doing any act of vandalism including the destruction or damage during any riots or public demonstration in the name of agitations, bandhs, hartals and the like. The "Mischief" has been defined under Section 2(a) of the P.D.P.P. Act, 1984 having the same meaning as in Section 425 of the Indian Penal Code (45 of 1860). Section 6 is the saving clause which says that the Act' 1984 covers the offence committed under it and the provisions of it are in addition to any other law which provides for any proceeding (whether by way of investigation or otherwise) which may be instituted or taken against the offender, apart from this Act. Special provisions with regard to disposal of a prayer for bail made by a person accused of commission of offence under the Act' 1984 has been provided under Section 5 of the P.D.P.P. Act, 1984.
The provisions oblige a person found guilty of commission of offence to pay the damage or loss caused to the public property. This Act, thus, covers the specific area of damage or loss or destruction of public property and recovery of such damages from the person(s) who is/are found guilty of such damage during the course of any public demonstration in the name of agitations, bandhs, hartals and the like.
12. In Re. Destruction of Public and Private Properties, In Re vs. State of Andhra Pradesh and others1. Taking a serious note of various instances where there was a large scale destruction of public and private properties in the name of agitations, bandhs, hartals and the like, suo motu proceedings had been initiated by the Apex Court and two committees were appointed to give suggestions on strengthening of the legal provisions of P.D.P.P. Act to effectively deal with such instances. The recommendations of two committees were considered and it was observed that the suggestions were extremely important and they constitute sufficient guidelines which need to be adopted. It was left open to the appropriate authorities to take effective steps for their implementation.
In a recent decision in Kodungallur Film Society and another vs. Union of India and others2, relief was sought to issue a mandamus to the appropriate authorities to strictly follow and implement the guidelines formulated by the Apex Court "Destruction of Public & Private Properties In re:", with regard to measures to be taken to prevent destruction of public and private properties in mass protests and demonstrations and also regarding the modalities of fixing liability and recovering compensation for damages caused to public and private properties during such demonstration and protests.
It was acknowledged in Kodungallur Film Society2 that the recommendations of the Committee noted in the said judgment travesed the length and breadth of the issue at hand and, if implemented in their entirety, would go a long way in removing the bane of violence caused against persons and property.
As far as implementation of the said recommendations, the Union had advised the States to follow the same in its letter and spirit. Issuing directions to implement recommendations made by the Apex Court in both the above decisions. Direction was issued in Kodungallur Film Society2 to both the Central and the State Government to do the same at the earliest.
13. In compliance thereof, the State of U.P. notified the "Uttar Pradesh Recovery of Damages to Public and Private Property Rules, 2020", framed with a view to provide for recovery of damages to public and private property during hartal, bundh, riots, public commotion, protests etc. in respect of the property and imposition of fine. The said 'Rules' provide for constitution of the claims tribunal to investigate the damages caused and to award compensation related thereto.
The area which is covered by the P.D.P.P. Act, 1984 is, thus, confined to the destruction or damage to the 'public property' within the meaning of Section 2(b) of the Act during the course of riots or public demonstrations (commotion). The said provisions, in the considered opinion of the Court, cannot be invoked for lodging the criminal complaint or the first information report on the allegations of damage or loss caused to the Gram Sabha land by illegal encroachment against a person permanently residing in the village or a tenure holder of any land in the village in question.
14. The first information report dated 19.8.2017 reporting an offence committed under Section 2/3 of the P.D.P.P. Act, 1984 is nothing but an abuse of the process of law. The concerned Magistrate has committed a patent error of law in taking cognizance of the alleged offence by passing a cryptic order without application of his independent mind. The charge sheet and the cognizance order summoning the applicants herein for alleged commission of offence under Section 2/3 of the P.D.P.P. Act, 1984 are, thus, liable to be quashed.
15. As far as the allegation of criminal offence under Section 447 IPC to constitute criminal trespass, the prosecution has to prove and the Court has to return a finding on the evidence that the trespass was committed with one of the intents enumerated in Section 441 of the Indian Penal Code. The prosecution has, thus, not only to allege but also to prove that the entry or unlawful occupation must be with an intent; (i) to commit an offence; or (ii) to intimidate, insult or annoy any person in possession of the property". Every 'trespass' by itself is not criminal. In absence of any such finding, the conviction under Section 447 IPC cannot be sustained. The offence under Section 447 I.P.C. though is cognizable but is also a compoundable offence triable by any Magistrate, trial of which has to be conducted summarily. A charge under this section should specifically state intent which is alleged. The accused may lay a bonafide claim and right in the land in question. Although he may have no right to the land but he cannot be convicted of criminal trespass unless it is proved by the prosecution that he did so with an intention to intimidate, insult or annoy the person in possession or to commit an offence. The complainant need not be necessarily a person in actual physical possession of the land in question on the date of entry of the trespasser, i.e. the accused person. He may be a person to whom the land in question belonged or deemed to have been vested. The person who actually owns the land or property is the competent person to lodge the complaint.
16. In the instant case, the allegations in the F.I.R. are general and vague against many persons with respect to different nature of lands. So far as the applicants herein both sons of Ganga Ram are concerned, it is averred in the FIR that they had encroached and damaged the public property belonging to Gram Sabha. The charge sheet does not disclose appreciation of any particular material on record against the applicants. The order of taking cognizance passed by the Magistrate is a non-speaking order. In this case, the criminal action proposed against the applicants, thus, is a result of non-application of judicial mind.
17. Noteworthy is that the allegations against the applicants herein are of encroachment on 'Banjar' land and not on a 'public utility land', which can be regularized if a proceeding for eviction is instituted against the applicants under the Revenue Code, 2006 as they may take a defence of being landless labourers of the village concerned, i.e. of being eligible persons for allotment of land or reqularization of their occupation/possession.
18. In any case, determination on the disputed questions of facts, in an appropriate proceeding before the Revenue Court is necessary. Neither the damage can be imposed for alleged 'Mischief' by taking criminal action under Section 2/3 of the P.D.P.P. Act, 1984 nor any offence of 'criminal trespass' under Section 447 of the Indian Penal Code can be said to have been prima facie made out against the applicants herein. The criminal proceedings initiated against the applicants pursuant to the F.I.R. namely Case Crime No. 0850 of 2017, Police Station Banda, District Shahjahanpur cannot but be said to be an abuse of the process of law or the Court. The cognizance order dated 14.10.2019 in Criminal Case No. 2418 of 2019 (State vs. Kastoori Singh and others) has been passed in complete ignorance of law. The continuation of criminal proceedings, in the considered opinion of the Court, being an abuse of process of the Court, ends of the justice requires that the said proceedings be quashed.
19. Invoking inherent powers under Section 482 Cr.P.C. of the High Court, the entire criminal proceedings of Case Crime No. 850 of 2017, Police Station Banda, District Shahjahanpur is hereby quashed.
The application stands allowed.?
5. The learned counsel also submits that the ratio of law as applied by Coordinate Bench of this Court in the case of Munshi Lal (supra) is also fully applicable in the case of the present applicants and he further submits that the alleged pond land is bhumidhari land of the applicants and they were in possesson of their own land. The case as set up by the informant, who is Lekhpal of the village, is only due to enmity and personal vendetta. Thus, the proceeding of the case may be quashed in the interest of justice, as it is a clearcut case of abuse of the process of law in view of the judgment cited above.
6. Miss Ankita Tripathi, learned A.G.A. did not dispute this fact that the civil proceeding are already pending between the parties in respect of dispute property, but she also does not dispute this fact that if the applicant has illegally taken possession of the pond, then the remedy under Section 67 of the U.P. Revenue Code 2006 lies before the authority concerned to initiate proceeding, but loding a first information report under Section 2/3, Prevention of Damage to Public Property Act, 1984, appears to be not justified, but she anyhow submits that prima facie offence is made out.
7. After considering the arguments advanced by the learned counsel for the parties, this court agrees with the arguments as advanced by the learned counsel for the applicants that the property mentioned in the F.I.R. is subjudice as Original Suit No. 1402 of 2019 (Mohd. Yunus Vs. Sahib Ali & Others) before the Court of learned Civil Judge (J.D.) Court No. 16, Raebareli, and the Board of Revenue, which has stayed the effect and operation of the order passed by the Sub Divisional Magistrate, Amethi. The F.I.R. was lodged after the proceeding was aleady pending before the competent civil court for adjudication of the rights and the matter is still pending. Even if it is assumed to be true that the applicants have illegally taken possession over the pond land, then also remedy before the authority concerned is to initiate proceeding under Section 67 of the U.P. Land Revenue Code 2006. The ratio of law as applied by Coordinate Bench of this Court in the case of Munshi Lal (supra) is applicable in the case of the present applicants also, thus, it is a clearcut case of abuse of the process of law on the face of the judgment cited above. Accordingly, the application is allowed. Proceedings on chargesheet no. 354 of 2021, dated 16.12.2021, filed by the investigating officer in F.I.R. No.0247 of 2021, U/S 2/3, the Prevention of Damage to Public Property Act, 1984, P.S.- Mohanganj, District-Amethi; as also the Cognizance order dated 23.04.2022 passed by the learned Additional Civil Judge (J.D.)/ Judicial Magistrate, Rae Bareli in Criminal Case no. 7862 of 2022, arising out of the aforesaid F.I.R., are hereby quashed.
(Shamim Ahmed, J.)
Order Date :- 16.5.2024
A.Nigam
