Syed Rahamath Ali vs State Of Telangana
2022 Latest Caselaw 5695 Tel

Citation : 2022 Latest Caselaw 5695 Tel
Judgement Date : 8 November, 2022

Telangana High Court

Syed Rahamath Ali vs State Of Telangana on 8 November, 2022

Bench: K.Surender

              HON'BLE SRI JUSTICE K.SURENDER

             CRIMINAL PETITION No.6225 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.416/2015

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.416 of 2015 was registered on 19.08.2015.

Briefly, the allegations against the petitioner is that the petitioner

has criminally trespassed and was illegally constructing compound

wall by dumping gravel at FTL Coordination Point No.660 towards

Srinagar Colony area of Osman 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.

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.

ii) M.Yadagiri Reddy v. V.C.Brahmanna and another [ 2005 (1)

ALD 1 (DB)], the Hon'ble Supreme 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

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.533/2016 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

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