High Court
Case Details
Neutral Citation No. - 2024:AHC:192546 Court No. - 86 Case :- CRIMINAL REVISION No. - 594 of 2024 Revisionist :- Jahar Singh And 3 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Manish Kumar Panday Counsel for Opposite Party :- G.A.,G.S. Chauhan Hon'ble Ram Manohar Narayan Mishra,J.
Legal Reasoning
1. Heard Mr. Praveen Kumar Dubey, learned counsel for the revisionists, learned counsel for the opposite party no. 2 and learned AGA for the State. 2. Instant criminal revision has been preferred against the impugned judgement and order dated 16.12.2023 passed by Judicial Magistrate, P.S. Moth, Disthrict Jhansi in Criminal Proceeding of Case No. 1147 of 2023 arising out of Case Crime No. 247 of 2022, under section 447 I.P.C. and Section 2/3 of Prevention of Damage Public Property Act, 1984, P.S. Moth, District Jhansi whereby trial court has dismissed the discharge application filed by the revisionists who was accused before the trial court. 3. Learned counsel for the revisionists submitted that an F.I.R. has been lodged against the revisionists at the instance of respondent no. 2, who is Lekhpal in Tehsil Moth, District Jhansi, with the allegation that the accused persons have caused encroachment on old Nala (drain) situated in Gol Abadi No. 528/9.509 at village Ammargarh. They have raised illegal permanent (pakka) construction and one platform (chabutra) by leveling the nala to the extent of 12/13 fit due to which serious problem of water drainage has arisen in the village. Due to water logging, walls of other houses situated in abadi were also getting moisturized. 4. He next submitted that an F.I.R. has been lodged by the informant, who is Lekhpal in concerned locality, with mala fide intention. The investigation in the case was carried on in partial manner and stand of the revisionists were not taken by the investigating officer and charge sheet has been filed against them in mechanical manner placing F.I.R. version on face value. 5. It is next submitted that an application under section 239 Cr.P.C. was filed by the revisionists with the prayer to discharge them from said charges as no offence is made out against them. He also submitted that Investigating Officer did not inspect the village land wherein no nala (drain) has been shown on the spot and he prepared a map on his own hand and submitted report against the revisionists after recording evidence of some witnesses of the Gram Sabha. The revisionists objected the said charge sheet filed against them by filing application under section 482 Cr.P.C. No. 28238 of 2023 which was disposed of vide order dated 19.9.2023 with observation that the the applicants will move a proper application for discharge through counsel within thirty days from today and they are free to take all the submissions in the said discharge application before the trial court which shall be considered and disposed of by the trial court in accordance with law within a period of two months. 6. He further submitted that in pursuance of directions of this Court, the revisionists have filed a discharge application before the trial court on 12.10.2023 wherein it is stated that revisionist no. 4 had asked for information under the Right to Public Information Act, 2005 in letter No.144 public information 2021-2022 dated 19.10.2021 regarding the Sampurna Samadhan Diwas dated 4.9.2021 then information was found that in the map of village Ammargarh, P.S. Moth, District Jhansi, there is no drain in the said village map. The revisionist no. 4 Lokendra Singh has filed a complaint on 14.8.2022 in Public IGRS portal against Hari Ram and others with allegation that some influential person are trying to encroach the nala (drain) in the village, therefore drain should be free from encroachment by digging the drain. On this the Lekhpal visited the spot and found that no drain on the map of village. Learned Lekhpal submitted a report on 24.8.2022 to the effect of spot inspection it is found that no nala is being constructed as of now. 7. He also submitted that in the report of Lekhpal dated 11.9.2021 it is stated that some influential persons have taken unauthorized possession of the nala (drain) whereas on survey no such nala (drain) is shown in the map. Tehsildar has stated to gram pradhan to produce an estimate of construction of nala so that the work may be started. Copy of map have also been filed as annexure no. 3 to the affidavit. He further stated in khatauni agricultural area 1427- 1432 the plot in question is accorded as abadi. He also submitted that learned trial court has ignored the said evidence filed by the revisionist and dismissed the application for discharge in mechanical manner placing reliance on opinion of investigating
Decision
officer the impugned order is contrary to law and deserves to be set aside. 8. The accused revisionist are entitled to discharge from said charges even ingredient of said offence are not made out in the case. 9. Per contra, learned counsel for the opposite party no. 2 submitted that there is no illegality, irregularity and perversity in the impugned order passed by the learned trial court. The document on which reliance has been placed by the revisionist are not part of case diary and according to law settled by the Apex Court same cannot be taken into consideration while considering and deciding the discharge application at the stage of framing of charges or adjudication of discharge application only the evidence recording during trial and documents can be looked into. 10. Learned AGA for the State submitted that impugned order is in consonance with law and revision deserves to be dismissed. 11. Under Section 447 punishment for criminal trespass has been provided imprisonment for three months or fine of 500 rupees or both and under section 441 criminal trespass has been defined which has been substituted by U.P. amendment (U.P. Act No. 31 of 1961) w.e.f. 13.11.1961 which may be reproduced as Under:- "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 unauthorized possession or making unauthorized 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 ill the notice. is said to commit "criminal trespass". 12. It is well settled law that at the stage of framing of charge probable defence of accused cannot be considered. The revenue papers and the report of Lekhpal and information given in the RTI Act on which reliance has been placed by the learned counsel for the revisionists are not part of the case diary and these documents are filed by the accused persons in present revision in support of their stand. 13. Under Section 239 Cr.P.C. provides that If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. 14. Perusal of F.I.R. and evidence collected during investigation it cannot be held that the charge against the accused/revisionists are groundless. The issues raised by the revisionists in present revision are liable to be looked into and consideration during trial. Hon'ble Supreme Court in State of Orissa vs. Debendra Nath Padhi, (2005) 1 SCC 568 categorically held that at the stage of framing of charge the defence of the accused cannot be put forth. Thus, the decision of the judge has to be based solely on the record of the case i.e. investigation report and document submitted by the prosecution. 15. On foregoing discussion and finding stated in judicial proceedings, I find no illegality, irregularity or perversity in the impugned order passed by the learned trial court whereby discharge application filed by the revisionists has been dismissed. The revision is devoid of merits and deserves to be dismissed. 16. The revision is dismissed, accordingly. Order Date :- 9.12.2024 SY