Disposed

Shan Afatb and 3 Others v. State of U.P. and 7 Others

Allahabad HC7 Oct 2020CRLP/9895/2020

Case brief

AI extract

What is this about?

This Court disposed of a Criminal Miscellaneous Writ Petition seeking quashing of an order and prohibition of arrest in an alleged criminal trespass case involving Waqf property. The Court directed no coercive action pending the submission of the police report.

What did the court decide?

No coercive action shall be taken against the petitioners in the aforementioned case till submission of police report under Section 173(2) Cr.P.C.

Shan Afatb and 3 Others Vs State of U.P… — Civil Procedure and Limitation | Allahabad HC (2020)

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Court No. - 45

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Case :- CRIMINAL MISC. WRIT PETITION No. - 9895 of 2020

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Petitioner :- Shan Afatb And 3 Others Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Zaheer Asghar,Syed Ahmed Faizan,Syed Farman Ahmad Naqvi(Senior Adv.) Counsel for Respondent :- G.A.,Punit Kumar Gupta

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Hon'ble B. Amit Sthalekar,J. Hon'ble Shekhar Kumar Yadav,J.

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Heard Shri V.M. Zaidi, learned senior counsel assisted by Shri Zaheer Asghar for the petitioners and the learned A.G.A. for the State.

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The petitioners are seeking quashing of the order dated 10.8.2020 passed by the respondent no. 2 as well as a writ of mandamus not to arrest the petitioners in Case Crime No. 0740 of 2020 under sections 447 I.P.C. and secton 3/4 of Damage to Public Property Act, 1984 police station Kotwali Fatehgarh District Farrukhabad, lodged in pursuance of the order dated 10.8.2020.

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The allegations of the impugned F.I.R. lodged by Shri Chhotey Lal, Assistant Survey Waqf Commissioner/District Minority Welfare Officer are that the petitioner have criminally tresspassed over the property of Waqf Vilayati Begum situated in Mohalla Ghershamu Khan, Farrukhabad and therefore they be declared to be land mafia.

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The submission of Shri V.M. Zaidi, learned senior counsel is that before the provisions of section 447 I.P.C. can be invoked, the amended provisions of section 441 I.P.C. as amended in the State of U.P. by Uttar Pradesh Act 31 of 1961 w.e.f. 13.11.1961. will have to be examined which provides that criminal tresspass takes place only when the alleged tresspasser does not vacate the encroached property when given a notice to do so by the person in whose property the tresspasser has entered upon. In paragraph 26 of the writ petition there is a clear averment by the petitioners that no notice under section 441 I.P.C. has been given to them by the respondent no. 7 or any other authority and therefore the alleged possession of the petitioners over the property in question cannot fall within the definition of criminal tress pass, as defined in section 441 I.P.C. as per Uttar Pradesh Act 31 of 1961 w.e.f. 13.11.1961.

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Learned A.G.A. appearing on behalf of the State supported the order dated 10.8.2020 passed by the respondent no. 2 and submitted that the allegations made in the F.I.R. cannot be

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aborted at this stage and the petitioners will have sufficient opportunity to rebut the allegations.

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In our opinion whether the petitioners have been given any notice by the complainant/informant or by the Waqf Board, as the case may be, whether the ingredients of section 441 I.P.C. constituting criminal tresspass are made out in non compliance of notice and the question whether notice at all was given to the petitioners in the first instance are all matters of investigation and no interference is called for.

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However, considering the peculiar facts and circumstances of the case and the submissions advanced by learned counsel for the parties, we dispose of this writ petition with the direction that no coercive action shall be taken against the petitioners in the aforementioned case till submission of police report under Section 173(2) Cr.P.C. However, petitioners shall participate and co-operate with the investigation and police authorities shall conclude the investigation within three months from the date of production of computerized/net copy of the order.

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The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

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Order Date :- 7.10.2020 o.k.

Shan Afatb and 3 Others v. State of U.P. and 7 Others

Case brief

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Shan Afatb and 3 Others v. State of U.P. and 7 Others

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