Circuit Court set aside the order of rejection of discharge, holding on merits that the allegations did not constitute criminal trespass or mischief and that the offence of criminal trespass was time-barred.
The applicant was discharged and the impugned orders rejecting discharge and dismissing revision were set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 35
Case :- APPLICATION U/S 482 No. - 370 of 2022
Applicant :- Shabbu Opposite Party :- State O Fu.P.Thru Prin.Secy. Home Lucknow And Anr. Counsel for Applicant :- Chhote Lal Yadav,Sunil Kumar Counsel for Opposite Party :- G.A.
Hon'ble Subhash Vidyarthi,J.
Heard Mr. Chhote Lal Yadav, learned counsel for the applicant and Mr. Prem Prakash, learned AGA-I for the State.
By means of the instant application under Section 482 Cr.P.C. the applicant has assailed the order dated 17.02.2020 passed by the Chief Judicial Magistrate, Faizabad in Criminal Case No. 18930 of 2018 rejecting the application for discharge under Section 245 Cr.P.C. filed by the applicant. The applicant has also assailed the order dated 20.11.2021 passed by the learned Additional District and Sessions Judge, Faizabad in Criminal Revision No. 148/2021 dismissing the revision filed against the aforesaid order.
An FIR was lodged by the opposite party no. 2 - Gram Pradhan, Village Makkhanpur, P.S. Kotwali Ayodhya, District Faizabad (now Ayodhya) on 13.05.2018 against seven persons including the applicant. The allegations against the applicant is that he is in illegal possession of the Banjar land at Gata No. 120 belonging to the Gram Sabha.
The learned counsel for the applicant has filed a copy of the order dated 15.07.2015 passed by the Court of Tehsildar, Sadar, Faizabad in Case No. 64 (Gram Sabha vs. Shabbu), which was initiated on the Lekhpal's report dated 25.07.2014 to the effect that the applicant Shabbu has illegally kept an iron Kiosk on 0.006 hectare land of Gata No. 120/1 belonging to Gram Sabha, for the past three years.
The Tehsildar taking into consideration the applicant's
reply that he is a handicapped person and earns his livelihood by selling eggs in the Kiosk kept on the land in question and he also keeps his households belongings into it and he has no other means of earning his livelihood.
Keeping in the view aforesaid fact, the Tehsildar decided the aforesaid case by means of an order dated 15.07.2015 holding that on the basis of the documents/evidence available on record it is clear that Shabbu son of Mohd. Manyu resident of Makkhanpur, Police Station Kotwali Ayodhya, District Faizabad is 100% handicap person and he belongs to other backward cast. His possession on the land in question is old. He uses the Kiosk for dual purpose of his residence and running a shop. The land in question does not fall under Section 117 U.P.Z.A.&L.R. Act.
Keeping in view the aforesaid facts, the Tehsildar withdrew the notice issued to the applicant and disposed of the matter.
Submission of the learned counsel for the applicant is that the Gram Pradhan has lodged the FIR in question regarding keeping of the Kiosk on the same land in dispute regarding which the aforesaid order dated 15.07.2015 was passed by the Tehsildar, Sadar, Faizabad. It is apparent from a bare perusal of the aforesaid order that the Lekhpal's report dated 25.07.2014 clearly mentioned that the applicant was in possession of the aforesaid land for the past three years i.e., at least since the year 2011. He has been charged with an offence under Section 447 IPC which provides for punishment for committing criminal trespass.
Criminal trespass is defined under Section 441 IPC which reads as follows:
" 441. Criminal Trespass.— Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains therewith
intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, or, having entered into or upon such property, whether before or after the coming into force of the Criminal Law (U.P. Amendment) Act, 1961, with the intention of taking unauthorised possession or making unauthorised use of such property fails to withdraw from such property or its possession or use, when called upon to do so by that another person by notice in writing, duly served upon him, by the date specified in the notice, is said to commit "criminal trespass"
There is no allegation that the applicant had entered upon the land in question with intent to commit any offence or to intimidate, insult or annoy any person in possession of such property and there is no allegation that he unlawfully remains therewith intent thereby to intimidate, insult or annoy any such person or with intent to commit an offence, therefore, even if the allegations levelled are taken to be true, the same do not make out an offence of criminal trespass under Section 441.
Secondly, the punishment for criminal trespass is provided under Sections 447 IPC which provides that "whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, with fine or which may extend to five hundred rupees, or with both".
Section 468 IPC makes a provision regarding the bar to taking cognizance after lapse of the period of limitation in the following words: -
" 468. Bar to taking cognizance after lapse of the period of limitation. (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only
1. Provisions of this Chapter shall not apply to certain economic offences, see the Economic Offences
(Inapplicability of Limitation) Act, 1974 (12 of 1974 ), s. 2 end Sch.
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.
For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.]"
As per the aforesaid order dated 15.07.2015 passed by the Tehsildar, it is apparent that the applicant had entered into the possession of the land in question by keeping his iron kiosk in or around the year 2011. Even if his entry amounted to criminal trespass, as the offence is punishable for imprisonment for three years only, the period of limitation for taking cognizance of the offence was one year only and cognizance of the offence could not be taken on the basis of the FIR lodged on 13.05.2018 i.e., seven years after the applicant entered into the possession as per the order dated 15.07.2015 passed by the Tehsildar, Sadar, Faizabad.
In view of the aforesaid facts, from the reading of the allegations levelled against the applicant and the order dated 15.07.2015 passed by the Tehsildar as well as the statutory provisions, no offence under Section 447 is made out against the applicant.
The applicant has also been charged for an offence under Section 2/3 of the Prevention of Damage to the Public Property Act, 1984 which provides as follows:
"2. Definitions.—In this Act, unless the context otherwise requires,— a) "mischief" shall have the same meaning as in section 425 of the Indian Penal Code (45 of 1860);
(b) "public property" means any property, whether immovable or movable (including any machinery) which is
owned by, or in the possession of, or under the control of
(i) the Central Government; or
(ii) any State Government; or
(iii) any local authority; or
(iv) any corporation established by, or under, a Central, Provincial or State Act; or
(v) any company as defined in section 617 of the Companies Act, 1956 (1 of 1956); or
(vi) any institution, concern or undertaking which the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided that the Central Government shall not specify any institution, concern or undertaking under this sub-clause unless such institution, concern or undertaking is financed wholly or substantially by funds provided directly or indirectly by the Central Government or by one or more State Governments, or partly by the Central Government and partly by one or more State Governments.
3. Mischief causing damage to public property.— (1) Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in sub-section (2), shall be punished with imprisonment for a term which may extend to five years and with fine.
(2) Whoever commits mischief by doing any act in respect of any public property being—
(a) any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy;
(b) any oil installations;
(c) any sewage works;
(d) any mine or factory;
(e) any means of public transportation or of telecommunications, or any building, installation or other property used in connection therewith, shall be punished
with rigorous imprisonment for a term which shall not be less than six months, but which may extend to five years and with fine: Provided that the court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months."
Mischief is defined in Section 425 of the Indian Penal Code which read as follows:
" 425. Mischief.— Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief". Explanation 1.—It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not. Explanation 2.—Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly. Illustrations
(a) A voluntarily burns a valuable security belonging to Z intending to cause wrongful loss to Z. A has committed mischief.
(b) A introduces water into an ice-house belonging to Z and thus causes the ice to melt, intending wrongful loss to Z. A has committed mischief.
(c) A voluntarily throws into a river a ring belonging to Z, with the intention of thereby causing wrongful loss to Z. A has committed mischief.
(d) A, knowing that his effects are about to be taken in execution in order to satisfy a debt due from him to Z, destroys those effects, with the intention of thereby preventing Z from obtaining satisfaction of the debt, and of thus causing damage to Z. A has committed mischief.
(e) A, having insured a ship, voluntarily causes the same
to be cast away, with the intention of causing damage to the under-writers. A has committed mischief.
(f) A causes a ship to be cast away, intending thereby to cause damage to Z who has lent money on bottomry on the ship. A has committed mischief.
(g) A, having joint property with Z in a horse, shoots the horse, intending thereby to cause wrongful loss to Z. A has committed mischief.
(h) A causes cattle to enter upon a field belonging to Z, intending to cause and knowing that he is likely to cause damage to Z's crop. A has committed mischief."
The sole allegation against the applicant is that he has put an iron Kiosk on 0.006 hectare land belonging to Gram Sabha, which is there at least since 2011. The allegation against the applicant do not make out a charge for ‘mischief’ as defined under Section 425 I.P.C. and as Section 2(a) of The Prevention of Damage to the Public Property Act, 1984 which provides that ‘mischief’ shall have the same meaning as have provided under Section 425 of the Indian Penal Code. The applicant cannot be charged with an offence under Section 2/3 of The Prevention of Damage to the Public Property Act, 1984.
The applicant has filed an application under Section 245 Cr.P.C. on 18.01.2020 seeking his discharge in which he, inter alia, stated that the order dated 15.07.2015 passed by the Tehsildar, Sadar, Faizabad by means of which the notice under Section 49A U.P.Z.A.&L.R. Act was withdrawn, has not been assailed by the Gram Sabha or the State and it has become final and binding on the parties. The applicant had filed Application under Section 482 Cr.P.C. No. 9107 of 2019 for quashing of the chargesheet which was disposed of by means of the order dated 19.12.2019 by granting liberty to the applicant to file an application for discharge under the provisions of the Criminal Procedure Code. The aforesaid application was rejected by the learned Chief Judicial Magistrate, Faizabad by means of the impugned order dated 17.02.2020 and the revision filed against the order dated
17.02.2020 has been dismissed by the learned Additional District and Sessions Judge/Special Judge (EC Act), Faizabad by means of the order dated 20.11.2021 in Criminal Revision No. 148 of 2021.
While deciding the discharge application and the revision, the learned Chief Judicial Magistrate and the learned Additional District and Sessions Judge have not taken into consideration the provisions contained in Section 447 of the Indian Penal Code and Section 2/3 of the Prevention of Damage to the Public Property Act, 1984.
In view of the aforesaid discussions, the order dated 17.02.2020 passed by the Chief Judicial Magistrate Faizabad in 18930 of 2018 and the order dated 20.11.2021 passed by the learned Additional District and Sessions Judge, Faizabad in Criminal Revision No. 148/2021 are hereby set-aside.
The application is allowed and the applicant is discharged.
The Registry is directed to communicate this order to the learned Court below.
Order Date :- 2.2.2022 Santosh/-
Digitally signed by SUBHASH VIDYARTHI Date: 2022.02.03 16:47:44 IST Reason: Document Owner Location: High Court of Judicature at Allahabad, Lucknow Bench
3 issues framed by the court
Whether the applicant is liable for an offence of criminal trespass when the alleged possession dates back to 2011 and the charge sheet was filed in 2018, surpassing the limitation period.
Whether the allegation of keeping an iron kiosk on Gram Sabha land constitutes mischief under Section 425 IPC and the Prevention of Damage to the Public Property Act, 1984.
Whether the impugned orders rejecting the discharge application and dismissing the revision are maintainable given the maintenance of innocence and limitation bars.
6 provisions across 3 enactments
Shabbu
State of Uttar Pradesh
Subhash Vidyarthi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
