Rajiv Tiwari And 5 Others vs State Of U.P, And Another
2025 Latest Caselaw 7492 ALL

Allahabad High Court

Rajiv Tiwari And 5 Others vs State Of U.P, And Another on 30 May, 2025

Author: Saurabh Srivastava

Bench: Saurabh Srivastava

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:94057
 
Court No. - 74
 
Case :- APPLICATION U/S 528 BNSS No. - 18690 of 2025
 
Applicant :- Rajiv Tiwari And 5 Others
 
Opposite Party :- State Of U.P, And Another
 
Counsel for Applicant :- R.P.S. Chauhan,Sharad Shekhar Sharma
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Srivastava,J.
 

1. Supplementary affidavit preferred on behalf of the applicants after serving copy of the same upon learned A.G.A. is taken on record.

2. Heard learned counsel for the applicants and learned A.G.A. for the State.

3. The instant application under section 528 BNSS has been preferred to quash the charge-sheet dated 31.05.2023 along with cognizance/summoning order dated 23.09.2024 as well as the entire criminal proceeding of Case No.6222 of 2024 (State vs. Ravi Kiran and others) arising out of Case Crime No.470 of 2022, under sections 3/4 of Prevention of Damage to Public Property Act, 1984 and section 447 of IPC and section 26 of Indian Forest Act, 1927, P.S. Kotwali Nagar, District- Chitrakoot, pending in the Court of learned Chief Judicial Magistrate, Chitrakoot.

4. Brief facts of the present case are that a first information report dated 29.10.2022 bearing Case Crime No.470 of 2022 was lodged by opposite party no.2 in pursuance to sections 3/4 of Prevention of Damage to Public Property Act, 1984 and sections 166, 218, 447, 467, 468, 471 IPC and section 26 of Indian Forest Act, 1927 against applicants along with other accused alleging therein that the plot no.455, measuring 10.838 hectare, situated at Village Bhabhai, Tehsil Karvi, District Chitrakoot, which is recorded as forest land, upon which all the applicants along with other co-accused by way committing forgery entered their name in the revenue record with the collusion of the then Circle Lekhpal. After lodging of the FIR, the concerned Investigating Officer started inquiry and after conclusion of the same, preferred charge-sheet on dated 31.05.2023 against applicants along with other co-accused, whereupon learned court concerned has taken cognizance of offence vide order dated 23.09.2024 in pursuance to sections 3/4 of Prevention of Damage to Public Property Act, 1984 and section 447 of IPC and section 26 of Indian Forest Act, 1927, which impugned the present application.

5. Learned counsel for applicants has challenged the charge-sheet as well as cognizance/summoning order on several other grounds inter-alia precisely on the ground that lodging of the first information report taking aid of provisions of the P.D.P.P. Act, 1984 as well as the Indian Forest Act, 1927 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 public property/forest land. 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 forest land has not been indicated.

6. In any case, the question as to whether applicants have illegally encroached upon the land vested in Gram Sabha/public property/forest land, can only be adjudicated by the Revenue Authorities. 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.

7. Per contra, learned AGA vehemently opposed the prayer sought through the instant application, but could not dispute the aforesaid arguments raised by learned counsel for applicants.

8. While dealing with similar issue, co-ordinate Bench of this Court vide order 6.8.2020 passed in Application u/s 482 no. 9964 of 2020 (Munshi Lal and Another vs. State of U.P. and another), quashed the entire proceeding u/s 2/3 of Prevention of Damage to Public Property Act, 1984 and held that as far as criminal proceeding for illegal encroachment, damage or trespass over the land belonging to Gram Sabha/public property 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. As far as the P.D.P.P. Act, 1984 as well as Indian Forest Act, 1927 are concerned, the same has been enacted with the specific purpose, the statement of objects and reasons of the said Acts shows that it was enacted with a view to curb acts of vandalism and damage to public property/forest land including destruction and damage caused during riots and public commotion.

9. 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 IPC 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.

10. From perusal of the records, it transpires that present case is squarely covered with the judgment of co-ordinate Bench of this Court passed in Munshi Lal (supra) and as such the criminal proceedings initiated against the applicants pursuant to sections of Prevention of Damage to Public Property Act, 1984 as well as Indian Forest Act, 1927, cannot but be said to be an abuse of the process of law or the Court. 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.

11. Invoking inherent powers under Section 528 BNSS of the High Court, entire proceedings of the Case No.6222 of 2024 (State vs. Ravi Kiran and others) arising out of Case Crime No.470 of 2022, under sections 3/4 of Prevention of Damage to Public Property Act, 1984 and section 447 of IPC and section 26 of Indian Forest Act, 1927, P.S. Kotwali Nagar, District- Chitrakoot, is hereby quashed only in respect of applicants herein.

12. The instant application stands allowed accordingly.

Order Date :- 30.5.2025/Saif