Smt. Pushpa and Another Vs State of U.P. Thru. Prin. Secy. Home Deptt. Lko and Another

Neutral Citation No. - 2024:AHC-LKO:58522

Court No. - 13

Case :- APPLICATION U/S 482 No. - 7488 of 2024

Applicant :- Smt. Pushpa And Another Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko And Another Counsel for Applicant :- Rakesh Kumar Nayak Counsel for Opposite Party :- G.A.

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Hon'ble Saurabh Lavania,J.

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Heard Sri Rakesh Kumar Nayak learned Advocate for the applicants and learned A.G.A for the State respondents.

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By means of the present application, the applicants seek for quashing of the charge sheet no. 1 of 2022 dated 21.09.2022 submitted in Case Crime No. 548 of 2022 as also the order dated 09.01.2023 in Criminal Case No. 155 of 2023 (State vs. Smt. Pushpa and Another), whereby the Judicial Magistrate, Ambedkar Nagar has directed for appearance of the accused-applicants before him.

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The first information report dated 31.08.2022 namely Case Crime No. 548 of 2022 was lodged by the Lekhpal of Village Sisani Akhairpur, Tehsil Akbarpur, District Ambedkar Nagar alleging commission of offence under Section 2/3 of the Prevention of Damage to Public Property Act, 1984 (hereinafter referred as to "the P.D.P.P. Act, 1984").

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The allegations in the F.I.R. are that the persons named therein including the applicants herein namely Smt Pushpa and Sri Ashok Kumar, residents of Village Sisani Akhairpur, Police Station Akbarpur, District Ambedkar Nagar had encroached plot No. 521 area 0.2250 hectares, which is recorded as Naveen Parti in the revenue records. The applicants had, thus, caused damage and loss to the public property which is the land vested in the Gram Sabha.

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Seeking for quashing of the charge sheet, the main submission of learned counsel for the applicants is that the lodging of the first information report taking aid of provisions of the P.D.P.P. Act, 1984 is nothing but an abuse of process of the law, inasmuch as, the said provisions cannot be invoked to lodge a criminal case on the allegations of damage or loss caused to the Gram Sabha land. The Magistrate has acted illegally and without application of judicial mind in taking cognizance on the charge sheet submitted under Section 2/3 of the P.D.P.P. Act, 1984.

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In any case, the question as to whether the land in dispute belongs to the applicants or they had illegally encroached upon the land vested in Gram Sabha, allegedly recorded as Banjar, can only be adjudicated by the revenue Court. The

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proper proceeding for eviction of the unauthorized occupant can be undertaken under Section 67 of the Revenue Code, 2006. The short cut procedure adopted by the Lekhpal of the village concerned is nothing but with a view to harass the applicants.

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He further stated that this Court in the judgment passed in the case of Prabhakant And Another Vs. State of U.P. and others reported in 2023 SCC OnLine All 397 , after considering the provisions of the Act, 1984 and the Code, 2006, interfered in the proceedings under Sections 2/3 of Act, 1984.

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He further stated that a perusal of Paras 14 to 22 of the judgment of this Court in the case of Prabhakant (supra) would show that the present application is squarely covered by the principles settled in the judgment passed in the case of Prabhakant (supra) . Relevant paras, referred, on reproduction, are as follows:-

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"(14). Now coming to yet another aspect of the issue, learned counsel for the applicants in order to buttress their contention have drawn attention of the Court to the provisions of Section 67 of the U.P. Revenue Code which speaks about the power to prevent damages, misappropriation and wrongful occupation of Gram Panchayat property:-

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(i) Where any property entrusted or deemed to be entrusted under the provisions of this Code to a Gram Panchayat or other local authority is damaged or misappropriated, or where any Gram Panchayat or other authority is entitled to take possession of any land under the provisions of this Code and such land is occupied otherwise than in accordance with the said provisions, the Bhumi Prabandhak Samiti or other authority or the Lekhpal concerned, as the case may be, shall inform the Assistant Collector concerned in the manner prescribed.

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(ii) Where from the information received under sub-section (i) or otherwise, the Assistant Collector is satisfied that any property referred to in sub-section (i) has been damaged or misappropriated, or any person is in occupation of any land referred to in that sub-section in contravention of the provisions of this Code, he shall issue notice to the person concerned to show cause why compensation for damage, misappropriation or wrongful occupation not exceeding the amount specified in the notice be not recovered from him and why he should not be evicted from such land.

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(iii) If the person to whom a notice has been issued under sub-section (ii) fails to show cause within the time specified in the notice or within such extended time as the Assistant Collector may allow in this behalf, or if the cause shown is found to be insufficient, the Assistant Collector may direct that such person shall be evicted from the land, and may, for that purpose, use or cause to be used such force as may be necessary, and may direct that the amount of compensation for damage or misappropriation of the property or for wrongful occupation as the case may be, be recovered from such person as arrears of land revenue.

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(iv) If the Assistant Collector is of opinion that the person showing cause is not guilty of causing the damage or misappropriation or wrongful occupation referred to in the notice under sub-section (ii), he shall discharge the notice.

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(v) Any person aggrieved by an order of the Assistant Collector under Sub-section (iii) or Sub-Section (iv), may within thirty days from the date of such order, prefer an appeal to the Collector.

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(vi) Notwithstanding anything contained in any other provisions of this Code, and subject to the provisions of this section every order of the Sub-Divisional Officer under this section shall, subject to the provisions of sub-section (5) be final.

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(vii) The procedure to be followed in any action taken under this section shall be such as may be prescribed.

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Explanation.- For the purposes of this section, the word "land" shall include the trees and building standing thereon."

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(15). Further, under Rule 67(1) of U.P. Revenue Code, 2016, it is incumbent upon the Assistant Collector to make an inquiry as he deems proper and obtain further information regarding the following issues :

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(a) full description of damage or misappropriation caused or the wrongful occupation made with details of village, plot number, area, boundary, property damaged or misappropriated and market value thereof;

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(b) full address along with parentage of the person responsible for such damage, misappropriation or wrongful occupation;

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(c) period of wrongful occupation, damage or misappropriation and class of soil of the plots involved;

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(d) value of the property damaged or misappropriated calculated at the circle rate fixed by the Collector and the amount sought to be recovered as damages."

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(16). Thus, from the above it is clear that as per the U.P. Revenue Code, it is the Assistant Collector of the area who is the authority concerned to act a pivotal role in demarcation and holding and declaring the land in dispute is encroached by the applicants. The Investigating Officer of criminal cases is not even remotedly connected to conduct this exercise. The entire procedure has been laid down in Section 67(2) that only after getting a reply from the alleged encroacher, the Assistant Commissioner/Sub Divisional Officer has to pass an order giving reasons for not exceeding the explanation, if so offered by the person concerned. The eviction from the land in dispute can only be recorded after disposal of the explanation offered by the person concerned keeping in line with the cardinal principle of natural justice by passing a well reasoned and speaking order while disposing of the said explanation. The Act is itself contained the amount of compensation of damage or misappropriation of the property or for wrongful occupation, as the case may be, may be recovered from such person as arrears of land revenue. Section 210 of the Revenue Code, 2006 confers supervisory power on the Board or the Commissioner to call for the record of any proceeding decided by the subordinate revenue court in which no appeal lies for the purpose of satisfying itself or himself as to the legality or propriety of any order passed in such suit or proceeding.

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(17). A careful reading of the provisions of the Revenue Code, 2006, thus, makes it clear that the proceeding for causing damage to the public property can be undertaken against any person who is in wrongful occupation of the same or causes damage or misappropriations to the said property. The nature of eviction proceeding under Section 67 of the Revenue Code, 2006, is, however, summary in nature. The rights of the parties claimed, if gives rise to a dispute requiring adjudication on the questions of fact, a suit for declaration has to be instituted against such person. The Gram Sabha may institute a suit under Section 145 of the U.P. Revenue Code, 2006 for declaration of its right or to seek any further

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relief. In case of institution of such a suit, a temporary injunction may be granted by the Court concerned to prevent wastage, damage or alienation of the suit property. The Revenue Code, 2006 is a Special enactment providing for the law relating to the 'land' defined under Section 4(14) of the Code.

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(18). As far as criminal proceeding for illegal encroachment, damage or trespass over the land belonging to Gram Sabha is concerned, the same can be undertaken but it would be subject to the adjudication of rights of the parties over the land in dispute as the said determination can be done only by the revenue Court.

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LEGALITY OF CRYPTIC/SUMMONING ORDER ON A PRINTED PROFORMA :

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(19). In addition to above, learned counsel for the applicants have drawn attention of the Court to the impugned summoning order whereby the concerned Magistrate, despite of the repeated directions of the Hon'ble Apex Court as well as of this Court, have adhered to the old fashion by taking the cognizance of offences on a printed proforma. Needless to mention here that on the previous occasion at least a dozen of the cases of different Benches of this Court in different proceedings have condemned and deprecated this practice of taking cognizance on a printed proforma, but it seems that the concerned Magistrates repeatedly in utter defiance of the directions of this Court are still taking cognizance on a printed praforma without applying their judicial mind. This is wholly unacceptable and condemned in strong term. The Session Judges of respective sessions divisions are required to look into the matter and issue an specific order that the cognizance order must be speaking and showing application of judicial mind.

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(20). It was noted by Hon'ble Apex Court in the case of Abdul Rashid vs. State of U.P., 2010 SCC online Alld 2819, wherein it has been held that the judicial order cannot be allowed to be passed in a mechanical fashion either by filling in the blanks in a printed proforma or by affixing a readymade seal etc. of the order on a plain paper. Such tendency must be deprecated and cannot be allowed to perpetuate. This reflects not only lack of judicial mind to the facts of the case but is also against the settled judicial norms.

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(21). Similarly in the case of Bhushan Kumar vs. State (NCT of Delhi), 2012 5 SCC 424, wherein the Hon'ble Apex Court has observed that Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. While explaining the true import of expression "sufficient ground for proceeding" the Hon'ble Apex Court in the case of Sunil Bharti Mittal vs. Central Bureau of Investigation, AIR 2015 SC 923 has held as under :

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"47. However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be swtated in the order itself...."

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(22). As mentioned above, taking into account the gravity of offence and its nature in which there is no criminality as such and the apt remedy would be to proceed against the erring so called encroacher u/s 67 of the U.P. Revenue Code and get the land in dispute demarcated. It is the case exclusively falls within the domain

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of concerned revenue authority to impose the fine, if any, after taking the whole exercise as per the provisions of law contained u/s 67 of the U.P. Revenue Code."

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Learned counsel for the applicants also referred para 5 to 18 of the judgment dated 06.08.2020 passed in Application U/S 482 No.9964 of 2020, (Munshi Lal And Another vs. State of U.P. and Another) , which are extracted hereinunder:-

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"5. In any case, the question as to whether the land in dispute belongs to the applicants or they had illegally encroached upon the land vested in Gram Sabha, allegedly recorded as Banjar, can only be adjudicated by the revenue Court. The proper proceeding for eviction of the unauthorized occupant can be undertaken under Section 67 of the Revenue Code, 2006. The short cut procedure adopted by the Lekhpal of the village concerned is nothing but with a view to harass the applicants.

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6. Having heard the learned counsel for the applicants and perused the record. At the out set, we may note that complete mechanism has been provided under Section 67 of the Revenue Code, 2006 empowering the Gram Sabha or any other authority to take possession of any land under the provisions of the Revenue Code, where such property is entrusted or deemed to be entrusted to a Gram Sabha or other local authority and is damaged or misappropriated by anyone. The Sub-Divisional Officer of the concerned Sub-Division is empowered to take action on the information received from the Bhumi Prabandhak Samiti or other authority or the Lekhpal concerned about such illegal occupation or damage or misappropriation of the Gram Sabha Land. In case, any person is found in occupation of any such land in contravention of the provisions of the Revenue Code, the Sub-Divisional Officer has to issue notice to the person concerned to show cause as to :- (i) why compensation for damage, misappropriation or wrongful occupation specified in the notice be not recovered from him? (ii) why he should not be evicted from such land?

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7. The person to whom such a notice is issued under sub-section (2) of Section 67 of the Code, can submit his reply disclosing his right or title or the nature of occupation over the land in question. In that case, the Sub- Divisional Officer has to pass an order giving reasons for not accepting the explanation, if so, offered by the person concerned. The eviction from the land can only be ordered after disposal of the explanation offered by the person concerned keeping in line with the principles of natural justice by passing a reasoned and speaking order which shall disclose the application of mind by the Officer. The amount of compensation for damage or misappropriation of the property or for wrongful occupation, as the case may be, may be recovered from such person as arrears of land revenue. Under sub-section (4) of Section 67, the Officer is empowered to discharge the notice if he forms an opinion that the person showing cause is not guilty of causing the damage or misappropriation or wrongful occupation of the property in question. Any person aggrieved by the order of the Sub-Divisional Officer under sub-section (3) or sub-section (4) of Section 67 may prefer an appeal to the Collector within thirty days from the date of such order. The procedure for undertaking the proceedings under Section 67 of the Revenue Code, thus, is complete in itself and does not leave any scope for any further computation of damage for wrongful occupation, damage caused or misappropriation of Gram Sabha land.

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8. Section 210 of the Revenue Code, 2006 confers supervisory power on the Board or the Commissioner to call for the record of any proceeding decided by the subordinate revenue court in which no appeal lies for the purpose of satisfying itself or himself as to the legality or propriety of any order passed in such suit or

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proceeding.

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Chapter XV of the Revenue Code, 2006 talks of penalties for encroachment and provides that any person who encroaches upon or causes any obstruction to the use of any public land (including chak road). path or common land of the village, shall be liable to a fine minimum Rs. 500/- and not exceeding Rs. 2,000/- and in case of his repetitive act, the Sub-Divisional Officer or the Tehsildar may require him to execute a personal bond for a sum not exceeding of Rs. 5,000/-.

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9. A careful reading of the provisions of the Revenue Code, 2006, thus, makes it clear that the proceeding for causing damage to the public property can be undertaken against any person who is in wrongful occupation of the same or causes damage or misappropriation to the said property. The nature of eviction proceeding under Section 67 of the Revenue Code, 2006 is, however, summary in nature. The rights of the parties claimed, if gives rise to a dispute requiring adjudication on the questions of fact, a suit for declaration has to be instituted against such person. The Gram Sabha may institute a suit under Section 145 of the U.P. Revenue Code, 2006 for declaration of its right or to seek any further relief. In case of institution of such a suit, a temporary injunction may be granted by the Court concerned to prevent wastage, damage or alienation of the suit property. The Revenue Code, 2006 is a Special enactment providing for the law relating to the 'land' defined under Section 4(14) of the Code.

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10. As far as criminal proceeding for illegal encroachment, damage or trespass over the land belonging to Gram Sabha is concerned, the same can be undertaken but it would be subject to the adjudication of rights of the parties over the land in dispute as the said determination can be done only by the revenue Court.

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11. As far as the P.D.P.P. Act, 1984 is concerned, the same has been enacted with the specific purpose. The statement of objects and reasons of the said Act shows that it was enacted with a view to curb acts of vandalism and damage to public property including destruction and damage caused during riots and public commotion. A need was felt to strengthen the law to enable the authorities to deal with cases of damage to public property. The "public property" as defined under Section 2(b) of the P.D.PP. Act, 1984 means any property, whether immovable or movable (including any machinery) which is owned by or in possession of or under the control of the Central or State Government or any local authority or any Corporation or any institution established by the Central, Provincial or State Act or its undertaking. Section 3 of the P.D.P.P. Act, 1984 provides that anyone who commits mischief by doing any act in respect of any public property' including the nature referred in sub-section (2) in the said section shall be punished with imprisonment and a fine depending upon the nature of the property as per sub-section (1) and sub-section (2) of Section 3 of the P.D.P.P. Act, 1984. Section 4 provides punishment for an act of 'Mischief' causing damage to pubic property by fire or explosive substance. The P.D.P.P. Act, 1984 is, thus, a Special Act enacted to punish for the offence committed under Sections 3 and 4 of the said Act by doing any act of vandalism including the destruction or damage during any riots or public demonstration in the name of agitations, bandhs, hartals and the like. The "Mischief" has been defined under Section 2(a) of the P.D.P.P. Act, 1984 having the same meaning as in Section 425 of the Indian Penal Code (45 of 1860). Section 6 is the saving clause which says that the Act' 1984 covers the offence committed under it and the provisions of it are in addition to any other law which provides for any proceeding (whether by way of investigation or otherwise) which may be instituted or taken against the offender, apart from this Act. Special provisions with regard to disposal of a prayer for bail made by a person accused of commission of offence under the Act' 1984 has been provided

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under Section 5 of the P.D.P.P. Act, 1984.

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The provisions oblige a person found guilty of commission of offence to pay the damage or loss caused to the public property. This Act, thus, covers the specific area of damage or loss or destruction of public property and recovery of such damages from the person(s) who is/are found guilty of such damage during the course of any public demonstration in the name of agitations, bandhs, hartals and the like.

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12. In Re. Destruction of Public and Private Properties, In Re vs. State of Andhra Pradesh and others'. Taking a serious note of various instances where there was a large scale destruction of public and private properties in the name of agitations, bandhs, hartals and the like, suo motu proceedings had been initiated by the Apex Court and two committees were appointed to give suggestions on strengthening of the legal provisions of P.D.PP. Act to effectively deal with such instances. The recommendations of two committees were considered and it was observed that the suggestions were extremely important and they constitute sufficient guidelines which need to be adopted. It was left open to the appropriate authorities to take effective steps for their implementation.

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In a recent decision in Kodungallur Film Society and another vs. Union of India and others, relief was sought to issue a mandamus to the appropriate authorities to strictly follow and implement the guidelines formulated by the Apex Court "Destruction of Public & Private Properties In re:", with regard to measures to be taken to prevent destruction of public and private properties in mass protests and demonstrations and also regarding the modalities of fixing liability and recovering compensation for damages caused to public and private properties during such demonstration and protests.

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It was acknowledged in Kodungallur Film Society that the recommendations of the Committee noted in the said judgment travesed the length and breadth of the issue at hand and, if implemented in their entirety, would go a long way in removing the bane of violence caused against persons and property.

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As far as implementation of the said recommendations, the Union had advised the States to follow the same in its letter and spirit. Issuing directions to implement recommendations made by the Apex Court in both the above decisions. Direction was issued in Kodungallur Film Society to both the Central and the State Government to do the same at the earliest.

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13. In compliance thereof, the State of U.P. notified the "Uttar Pradesh Recovery of Damages to Public and Private Property Rules, 2020", framed with a view to provide for recovery of damages to public and private property during hartal, bundh, riots, public commotion, protests etc. in respect of the property and imposition of fine. The said 'Rules' provide for constitution of the claims tribunal to investigate the damages caused and to award compensation related thereto.

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The area which is covered by the P.D.P.P. Act, 1984 is, thus, confined to the destruction or damage to the 'public property' within the meaning of Section 2(b) of the Act during the course of riots or public demonstrations (commotion). The said provisions, in the considered opinion of the Court, cannot be invoked for lodging the criminal complaint or the first information report on the allegations of damage or loss caused to the Gram Sabha land by illegal encroachment against a person permanently residing in the village or a tenure holder of any land in the village in question.

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14. The first information report dated 19.8.2017 reporting an offence committed under Section 2/3 of the P.D.P.P. Act, 1984 is nothing but an abuse of the process of law. The concerned Magistrate has committed a patent error of law in taking cognizance of the alleged offence by passing a cryptic order without application of his independent mind. The charge sheet and the cognizance order summoning the applicants herein for alleged commission of offence under Section 2/3 of the P.D.P.P. Act, 1984 are, thus, liable to be quashed.

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15. As far as the allegation of criminal offence under Section 447 IPC to constitute criminal trespass, the prosecution has to prove and the Court has to return a finding on the the evidence cutie the trespass was committed with one of the intents enumerated in Section 441 of the Indian Penal Code. The prosecution has, thus, not only to allege but also to prove that the entry or unlawful occupation must be with an intent; (i) to commit an offence; or (ii) to intimidate, insult or annoy any person in possession of the property". Every 'trespass' by itself is not criminal. In absence of any such finding, the conviction under Section 447 IPC cannot be sustained. The offence under Section 447 I.P.C. though is cognizable but is also a compoundable offence triable by any Magistrate, trial of which has to be conducted summarily. A charge under this section should specifically state intent which is alleged. The accused may lay a bonafide claim and right in the land in question. Although he may have no right to the land but he cannot be convicted of criminal trespass unless it is proved by the prosecution that he did so with an intention to intimidate, insult or annoy the person in possession or to commit an offence. The complainant need not be necessarily a person in actual physical possession of the land in question on the date of entry of the trespasser, i.e, the accused person. He may be a person to whom the land in question belonged or deemed to have been vested. The person who actually owns the land or property is the competent person to lodge the complaint.

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16. In the instant case, the allegations in the F.I.R. are general and vague against many persons with respect to different nature of lands. So far as the applicants herein both sons of Ganga Ram are concerned, it is averred in the FIR that they had encroached and damaged the public property belonging to Gram Sabha. The charge sheet does not disclose appreciation of any particular material on record against the applicants. The order of taking cognizance passed by the Magistrate is a non- speaking order. In this case, the criminal action proposed against the applicants, thus, is a result of non-application of judicial mind.

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17. Noteworthy is that the allegations against the applicants herein are of encroachment on "Banjar land and not on a public utility land, which can be regularized if a proceeding for eviction is instituted against the applicants under the Revenue Code, 2006 as they may take a defince of being landless labourers of the village concerned, Le of being eligible persons for allotment of land of reqularization of their occupation/possession.

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18. In any case, determination on the disputed questions of facts, in an appropriate proceeding before the Revenue Court is necessary. Neither the damage can be imposed for alleged 'Mischief by taking criminal action under Section 2/3 of the PD.PP. Act, 1984 nor any offence of criminal trespass under Section 447 of the Indian Penal Code can be said to have been prima facie made out against the applicants herein. The criminal proceedings initiated against the applicants pursuant to the F.I.R. namely Case Crime No. 0850 of 2017. Police Station Banda, District Shahjahanpur cannot but be said to be an abuse of the process of law or the Court. The cognizance order dated 14.10.2019 in Criminal Case No. 2418 of 2019 (State vs. Kastoori Singh and others) has been passed in complete ignorance of law. The continuation of criminal proceedings, in the

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considered opinion of the Court, being an abuse of process of the Court, ends of the justice requires that the said proceedings be quashed. 19. Invoking inherent powers under Section 482 Cr.P.C. of the High Court, the entire criminal proceedings of Case Crime No. 850 of 2017, Police Station Banda, District Shahjahanpur is hereby quashed.

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The application stands allowed."

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It is also stated that in view of law laid down by this Court in the judgments passed in the case of Prabhakant (supra) and Munshi Lal (supra) as also taking note of the facts based upon the order(s) passed by DDC and revenue authorities, indicated above, the case of the prosecution has no legs to stand. Thus, the prayer is to allow the present application and cause interference in the proceedings in issue.

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Learned AGA for the State opposed the present application but he could not dispute the facts based upon the order(s) passed by revenue authorities as also the observations made by this Court in the judgment passed in the case of Prabhakant (supra) and Munshi Lal (supra) .

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Upon due consideration of the facts of the present case, indicated above, documents on record and the observations in the judgments, referred above, this Court is of the view that the present case is liable to be allowed.

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Having observed the aforesaid, the present application is allowed . The the entire criminal proceedings of Case Crime No. 548 of 2022, Police Station Akbarpur, District Ambedkar Nagar are hereby quashed .

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The instant application is hereby allowed in above terms.

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Order Date :- 28.8.2024 (Manoj K.)

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Digitally signed by :- MANOJ KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Smt. Pushpa and Another v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko and Another

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