This court disposed of an application under Section 482 Cr.P.C. seeking quashing of proceedings for criminal trespass and damage to public property. It held that prima facie allegations disclosed an offence and rejected the challenge.
The application u/s 482 Cr.P.C. was dismissed and consigned to records.
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. - 48
Case :- APPLICATION U/S 482 No. - 13062 of 2022
Applicant :- Amit Kumar And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Avinash Pandey Counsel for Opposite Party :- G.A.
Hon'ble Ashwani Kumar Mishra,J.
Charge-sheet dated 28.10.2020 in Criminal Case No. 4719 of 2021 arising out of Case Crime No. 411 of 2020 under Sections 447 I.P.C. and Section 3 (2) of the Prevention of Damage to Public Property Act, 1984 as well as the order of the Chief Judicial Magistrate, Saharanpur, taking cognizance on 15.2.2021 is assailed primarily on the ground that no offence under the provisions of the Prevention of Damage to Public Property Act, 1984 or under Section 441 IPC is made out and, therefore, the proceedings in respect there of are liable to be quashed.
A perusal of the first information report would go to show that there are specific allegation that on the basis of a complaint made against the applicant of having encroached upon 'Chakmarg' the concerned revenue authority passed an order, pursuant to which the demarcation of plot vis-z-vis chakmarg was made on the spot but even thereafter the applicants have again encroached upon the Chakmarg. The proceedings are assailed on the ground that offence under Section 441 cannot be said to have been made out inasmuch as there is no notice, in writing, requiring the noticee to withdraw the unauthorised possession by the date fixed fixed in the notice. Section 441 IPC, as it stands incorporated in respect of the State of U.P., is reproduced below:-
“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 and 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”.
The above provision refers to a specific notice to the person concerned alleged of having remained in unauthorised possession or making unauthorised use of such public property and consequent failure to vacate such possession.
In the facts of the case, it is clearly alleged in the FIR that
faced with the allegation of unauthorised encroachment over the Chakmarg, proceedings have been initiated and the demarcation was carried out under the orders of the revenue authority on 21.1.2020 and the possession of the applicant over such land was removed, where after, the property has again been encroached upon by the applicant. In substance, the offence in terms of Section 441 IPC would be, prima-facie, made out since it is alleged that such unauthorised possession was removed by the competent authority and the encroachment has been made all over again over it.This Court is otherwise not required to return a definite finding, in that regard, as the matter is yet to be tried by the competent Court. Primafacie allegations, however, are shown to exist in that regard. There are otherwise allegations of commissioning of cognizable offence under Section 3 (2) of the Act of 1984 inasmuch as the allegation is that the public property including property meant for public transportation has been encroached and the mischief contemplated under Section 3 of the Act of 1984 has been caused. Since the allegations referable to the aforesaid provision under the Act of 1984 and the Indian Penal Code are prima-facie disclosed, the submission of the charge-sheet as well the order passed by the concerned court taking cognizance cannot be faulted. Challenge laid to the charge-sheet as well as the summoning order, therefore, fails. The observations made in this order, however, shall not prejudice the applicants' case, at the stage of trial which shall be dealt with on the basis of evidence lead in the matter.
Subject to the observations made above, this application filed under Section 482 Cr.P.C. fails and is consigned to records.
Order Date :- 24.6.2022
n.u.
Digitally signed by NASEEM UDDIN Date: 2022.06.27 17:47:25 IST Reason: Location: High Court of Judicature at Allahabad
2 issues framed by the court
Whether the proceedings under Section 441 IPC and the Prevention of Damage to Public Property Act, 1984 are liable to be quashed as no offence is made out.
Whether the allegations of unauthorised encroachment prima facie disclose an offence under Section 441 IPC and Section 3(2) of the Prevention of Damage to Public Property Act, 1984.
3 provisions across 3 enactments
Amit Kumar And Another
Ashwani Kumar Mishra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
