Dismissed

Srinath and Another v. State of U.P. Thru. Prin. Secy. Home. Lko and Another

Allahabad HC17 Feb 2022/5801/2021

Case brief

AI extract

What is this about?

The High Court, Allahabad dismissed an application seeking quashing of criminal proceedings under the Prevention of Damage to Public Property Act. The court held that the PDPP Act and the U.P. Revenue Code operate in different fields, and the civil remedy under the Revenue Code does not bar criminal prosecution for mischief.

What did the court decide?

Petition dismissed; liberty granted to file bail application to be decided expeditiously.

Srinath and Another Vs State of U.P. Thru. Prin. Secy… — Quashing and FIR | Allahabad HC (2022)

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Court No. - 13 Case :- APPLICATION U/S 482 No. - 5801 of 2021 Applicant :- Srinath And Another Opposite Party :- State Of U.P. Thru. Prin. Secy. Home. Lko And Another Counsel for Applicant :- Shrikant Mishra,Hemant Tripathi,Kumar Jaikrit Counsel for Opposite Party :- G.A.

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Hon'ble Karunesh Singh Pawar,J.

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Heard learned counsel for the petitioners, learned A.G.A. for the State and perused the record.

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The petitioners have filed the petition with the following relief:-

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(i) It is, therefore, most respectfully prayed that this Hon'ble Court be pleased to quash the entire proceedings of Criminal Case No. 1658 of 2021 State Vs Srinath, under sections 2/3 of Prevention of Damage to Public Property Act, 1984 pending in the Court of Judicial Magistrate, Court No.23, Sultanpur with respect to the present Applicants.

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(ii) It is, therefore, most respectfully prayed that this Hon'ble Court be pleased to set aside the impugned summoning order dated 06/10/2021, which has passed by the Judicial Magistrate. Court No.23, Sultanpur, whereby he has summoned the present Applicants, in Criminal Case No. 1658 of 2021, State Vs Srinath to face trial under sections 2/3 of Prevention of Damage to Public Property Act, 1984. (which is annexed as Annexure No. 1 to the present Application).

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(iii) It is, therefore, most respectfully prayed that this Hon'ble Court be pleased to quash the charge Sheet No. 01 of 2020, filed in the FIR No. 27 of 2020, under sections 2/3 of Prevention of Damage to Public Property Act, 1984, (which is annexed as Annexure No. 1 to the present Application).

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(iv) *****

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Learned counsel for the petitioners submits that the area Lekhpal has filed an F.I.R. alleging damages being caused to the public property. It has been submitted that definition of public property has been given under Section 2/3 Prevention of Damages to Public Property Act, 1984 which does not clearly mention that the gram sabha's land is public property.

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It has been further submitted that without considering the above provisions, the investigating officer hurriedly has submitted the charge sheet without verifying the facts. It has also been submitted that cognizance order and the summoning order have been issued not in accordance with the provisions of the PDPP Act as the provisions of the PDPP Act are not attracted in this case.

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It is further submitted that already there is a remedy under Section 67 of U.P. Revenue Code for Gram Sabha to get the land vacated from the petitioner and therefore, there is no need to file an F.I.R.

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Learned A.G.A. has opposed the petition submitting that the property in question is recorded as 'jungle land' which is owned by the State Government and therefore is a public property under the Act. It is further submitted that F.I.R. discloses prima facie commission of offence. The statement of Lekhpal and Revenue Inspector further corroborates the prosecution story.

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It is further submitted that after due inspection and considering the statements of the prosecution witnesses and finding prima facie case, charge sheet has been filed against the petitioner. There is no illegality in the impugned summoning order and cognizance order. He lastly submits that the petition is misconceived, devoid of merits and is liable to be dismissed.

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On due consideration to the arguments advanced by learned counsel for the parties, perusal of the record and also provisions of the PDPP Act 1984, it appears that F.I.R. No 0027 of 2020 has been lodged at Police Station Amethi, District Amethi under Section 2/3 of Prevention of Damages to Public Property Act, 1984 wherein the informant who is Lekhpal has alleged that the land gata No. 617/0572 which is recorded as jungle khata has been encroached by the petitioners by building a house and tin shed and they are not ready to withdraw the possession. The statement of Lekhpal is also on record and corroborates the prosecution story in the F.I.R. The statement of Lekhpal further depicts that prior to lodging of the F.I.R. two notices dated 29.12.2019 and 15.01.2020 were issued to the petitioners which were received and signed by them, still the encroachment has not been removed. The similar statement has been given by the Revenue Inspector also, which is on record and also corroborates the prosecution story.

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A perusal of the charge sheet shows that the investigating officer after conducting investigation, taking into consideration the statement of prosecution witnesses and after inspecting the site has filed the charge sheet.

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So far as the argument of the petitioner that there is already a provision under Section 67 of U.P. Revenue Code, 2006 which provides aggrieved persons including the gram sabha for vacation and removal of the encroachment and also the provisions under Section 136 of the U.P. Revenue Code, 2006 which provides removal of encroachment by trespassers are concerned, I am of the opinion that the proceedings under the PDPP Act, 1984 distinct from the matters which are covered under the Revenue Code wherein the provisions of eviction has been provide and recovery of damages on account of unauthorized occupation and use of land belonging to the State under the management of Gram Sabha. The procedures

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provided in the Revenue Code are summary in nature and are purely civil remedy with no criminality attached with, whereas the act of the petitioner prima facie constitutes a "mischief" within the meaning of Section 2(a) of the PDPP Act, wherein the definition of the word "mischief" has been assigned as the same meaning has given in Section 425 of Penal Code. This act of the petitioner will constitute a criminal offences under Section 3 of the Act and shall be liable for penal consequences i.e. imprisonment and fine.

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The provisions of the U.P. Revenue Code, 2006 and PDPP Act, both operate in different fields and there is no bar in respect of the institution of proceedings under the aforesaid enactments separately. This issue has already been considered by the coordinate Bench of this Court vide judgment and order dated 23.09.2021 passed in Application U/S 482 No. 14192/2021. The relevant para no. 29 is as extracted below:-

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"29. The subject matter relating to acts of violence at public places, to control its persistence and escalation, and to provides for recovery of damage to public or private property during hartals, bands, riots, public commotion and protests in respect of property and constitution of claims tribunals to investigate and determine the damages caused and to award compensation in relation thereto have been provided for under the aforementioned U.P. Act No.11 of 2020."

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In view of the settled position of law, the submission advanced by the learned A.G.A. appears to have force and there is no illegality in the impugned summoning order or the cognizance order and the proceedings, consequences thereto, this is not the rarest of the rare case where the jurisdiction under Section 482 Cr.P.C. can be exercised for quashing of the proceedings. The petition lacks merits and is accordingly dismissed .

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At this stage, learned counsel for the petitioners prays that he may be given liberty to file a bail application which may be decided in view of law laid down by Supreme Court in "Satender Kumar Antil versus Central Bureau of Investigation and another, Special Leave to Appeal (Cri)No.5191 of 2021 " to which learned A.G.A. has no objection.

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In view of the above, it is provided that in case the petitioners appear before the trial court within fifteen days from today and apply for bail, the same be decided expeditiously, in view of the law laid down by Supreme Court in Satender Kumar Antil's case (supra).

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Order Date :- 17.2.2022 R.C.

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Digitally signed by RAM CHANDER YADAV Date: 2022.02.24 19:28:57 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Srinath and Another v. State of U.P. Thru. Prin. Secy. Home. Lko and Another

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Srinath and Another v. State of U.P. Thru. Prin. Secy. Home. Lko and Another

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