Om Prakash and Another Vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:87317

Court No. - 74

Case :- APPLICATION U/S 528 BNSS No. - 13397 of 2025

Applicant :- Om Prakash And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kamla Kant Mishra,Varun Mishra Counsel for Opposite Party :- G.A.

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Hon'ble Saurabh Srivastava,J.

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Heard learned counsel for the applicants and learned A.G.A. for the State.

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The instant application under section 528 BNSS has been preferred to quash the chargesheet no. 236/2023 dated 14.12.2023 as well as cognizance/summoning order dated 19.01.2024 including the entire criminal proceeding of Case No. 45 of 2024 (State vs. Rakesh Kumar) arising out of Case Crime No. 0288 of 2023, under section 379 IPC and section 2/3 of Prevention of Damage to Public Property Act, 1984, P.S. Machhalishahar, District Jaunpur, pending in the Court of learned Civil Judge (S.D.), F.T.C., Jaunpur as well as to stay the further proceedings of abovementioned case.

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Brief facts of the present case are that a first information report dated 16.11.2023 bearing Case Crime No. 0288 of 2023 was lodged by Lekhpal/opposite party no.2 against applicants alleging therein that the applicants have caused damage and loss to the public property which is the land vested in Gram Sabha. After lodging of the FIR, the concerned Investigating Officer started inquiry and after conclusion of the same, preferred charge-sheet no. 236/2023 dated 14.12.2023 against applicants whereupon learned court concerned has taken cognizance of offence vide order dated 19.01.2024 which impugned the present petition.

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Learned counsel for applicant has challenged the chargesheet as well as cognizance/summoning order on several other ground inter-alia precisely on the ground that 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

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judicial mind in taking cognizance on the charge sheet submitted under section 379 IPC and section 2/3 of Prevention of Damage to Public Property Act, 1984.

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In any case, the question as to whether applicant had illegally encroached upon the land vested in Gram Sabha, recorded as Chakroad, can only be adjudicated by the Revenue Authorities. 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 applicant.

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Per contra, learned AGA vehemently opposed the prayer sought through the instant petition but could not dispute the aforesaid arguments raised by learned counsel for applicant.

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While dealing with similar issue, co-ordinate Bench of this Court vide order 6.8.2020 passed in Application u/s 482 no. 9964 of 2020 (Munshi Lal and Another vs. State of U.P. and another) , quashed the entire proceeding u/s 2/3 of Prevention of Damage to Public Property Act, 1984 and held that 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. 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.

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From perusal of the records, it transpires that present case is squarely covered with the judgment of co-ordinate Bench of this Court passed in Munshi Lal (supra) and as such the criminal proceedings initiated against the applicant pursuant to Section of Prevention of Damage to Public Property Act, 1984, cannot but be said to be an abuse of the process of law or the Court. The cognizance/summoning order dated 19.01.2024 has been passed in complete ignorance of law. The continuation of criminal proceedings, in the considered opinion of the Court, being an abuse of process of the Court, ends of the justice requires that the said proceedings be quashed.

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Invoking inherent powers under Section 528 BNSS of the High Court, entire proceedings of Case No. 45 of 2024 (State vs. Rakesh

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Kumar), P.S. Machhalishahar, District Jaunpur only in pursuance to section 2/3 of Prevention of Damage to Public Property Act, 1984 is hereby quashed in respect of applicants herein. However, learned Court of Civil Judge (S.D.), F.T.C., Jaunpur/concerned court is hereby directed to proceed in pursuance to section 379 IPC against the applicants.

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In view thereof, the instant application stands partly allowed.

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Order Date :- 22.5.2025 #Vik/-

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Digitally signed by :- VIKRAM GUPTA High Court of Judicature at Allahabad

Om Prakash and Another v. State of U.P. and Another

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