High Court

Hon'ble Saurabh Srivastava,J.

1. Heard Sri R.P.S. Chauhan, learned counsel for applicants and learned AGA.

2. The instant application has been preferred to quash the chargesheet dated 28.12.2024 along with cognizance/summoning order dated 19.03.2024 passed in Criminal Case No.594 of 2024, arising out of Case Crime No.48 of 2021, under Section 447 IPC and Section 3/5 of Prevention of Damage to Public Property Act, 1984, P.S. Jaleshar, District- Etah, pending in the Court of learned Additional Chief Judicial Magistrate, Jaleshar, Etah.

3. Brief facts of the present case are that a first information report dated 13.02.2021 bearing Case Crime No.48 of 2024 was lodged by opposite party no.2/Deputy Chief Veterinary Officer in pursuance to Section 447 IPC against applicants and some other persons alleging plot no.572, area 2.8 hectare which is land of Animal Husbandry Department recorded in the name of Bull's house, was illegally encroached by applicants by way of making certain constructions. After lodging of the FIR, the concerned Investigating Officer started inquiry and after conclusion of the same, preferred charge-sheet on dated 28.12.2024 against applicants under Section 447 IPC and Section 3/5 of Prevention of Damage to Public Property Act, 1984 whereupon learned court concerned has taken cognizance of offence vide order dated 19.03.2024, which impugned the present application.

4. Learned counsel for applicants has challenged the entire proceedings of the present on several other grounds inter-alia precisely on the ground that initiation of criminal case 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 2 NA528 No. 2419 of 2025 loss caused to the public property. Learned counsel for applicants has further submitted that plot no.572 was made from plot no.969/2 whereupon a road was constructed therefore, area of the said plot has been reduced. It has also been apprised by learned counsel for applicants that over 0.049 hectare of plot no.969, a lease was granted by owner of the said land in favour of grandfather of applicant no.1 way back in the year 1949 and plot no.572 and plot no.969 have not been separately mentioned and demarcated and as such, both the plots are joint holdings which creating dispute between the parties and just because of that, the instant FIR was misunderstanding, meaning thereby, the present dispute pertains to civil nature but learned court concerned has acted illegally and without application of judicial mind, took cognizance of offence on the charge sheet submitted under Section 447 IPC and Section 3/5 of Prevention of Damage to Public Property Act, 1984. As far as the allegations of commission of offence of criminal trespass under Section 447 IPC is concerned, learned counsel for applicants has submitted that the same cannot be attracted unless it is proved by the prosecution that they did so with an intention to intimidate, insult or annoy the person in possession or to commit an offence. applicants against lodged

5. In any case, the question as to whether applicants had illegally encroached upon the property pertains to public, 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 opposite party no.2, is nothing but with a view to harass the applicants.

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

7. 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 447 IPC and Section 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 3 NA528 No. 2419 of 2025 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.

8. 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 evidence that 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.

9. 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 applicants pursuant to Section 447 IPC and Section 3/5 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 19.03.2024 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. 4 NA528 No. 2419 of 2025 inherent powers under Section 528 BNSS, 10. Invoking chargesheet dated 28.12.2024 along with cognizance/summoning order dated 19.03.2024 passed in Criminal Case No.594 of 2024, arising out of Case Crime No.48 of 2021, under Section 447 IPC and Section 3/5 of Prevention of Damage to Public Property Act, 1984, P.S. Jaleshar, District- Etah, pending in the Court of learned Additional Chief Judicial Magistrate, Jaleshar, Etah, are hereby quashed.

11. The instant application stands allowed accordingly.

12. However, it is made clear that this order shall not preclude the revenue authorities to proceed against applicants, if required, in accordance with the strict provisions of U.P. Revenue Code, 2006. Order Date :- 18.8.2025 Vivek Kr.

Hon'ble Saurabh Srivastava,J.

1. Heard Sri R.P.S. Chauhan, learned counsel for applicants and learned AGA.

2. The instant application has been preferred to quash the chargesheet dated 28.12.2024 along with cognizance/summoning order dated 19.03.2024 passed in Criminal Case No.594 of 2024, arising out of Case Crime No.48 of 2021, under Section 447 IPC and Section 3/5 of Prevention of Damage to Public Property Act, 1984, P.S. Jaleshar, District- Etah, pending in the Court of learned Additional Chief Judicial Magistrate, Jaleshar, Etah.

3. Brief facts of the present case are that a first information report dated 13.02.2021 bearing Case Crime No.48 of 2024 was lodged by opposite party no.2/Deputy Chief Veterinary Officer in pursuance to Section 447 IPC against applicants and some other persons alleging plot no.572, area 2.8 hectare which is land of Animal Husbandry Department recorded in the name of Bull's house, was illegally encroached by applicants by way of making certain constructions. After lodging of the FIR, the concerned Investigating Officer started inquiry and after conclusion of the same, preferred charge-sheet on dated 28.12.2024 against applicants under Section 447 IPC and Section 3/5 of Prevention of Damage to Public Property Act, 1984 whereupon learned court concerned has taken cognizance of offence vide order dated 19.03.2024, which impugned the present application.

4. Learned counsel for applicants has challenged the entire proceedings of the present on several other grounds inter-alia precisely on the ground that initiation of criminal case 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 2 NA528 No. 2419 of 2025 loss caused to the public property. Learned counsel for applicants has further submitted that plot no.572 was made from plot no.969/2 whereupon a road was constructed therefore, area of the said plot has been reduced. It has also been apprised by learned counsel for applicants that over 0.049 hectare of plot no.969, a lease was granted by owner of the said land in favour of grandfather of applicant no.1 way back in the year 1949 and plot no.572 and plot no.969 have not been separately mentioned and demarcated and as such, both the plots are joint holdings which creating dispute between the parties and just because of that, the instant FIR was misunderstanding, meaning thereby, the present dispute pertains to civil nature but learned court concerned has acted illegally and without application of judicial mind, took cognizance of offence on the charge sheet submitted under Section 447 IPC and Section 3/5 of Prevention of Damage to Public Property Act, 1984. As far as the allegations of commission of offence of criminal trespass under Section 447 IPC is concerned, learned counsel for applicants has submitted that the same cannot be attracted unless it is proved by the prosecution that they did so with an intention to intimidate, insult or annoy the person in possession or to commit an offence. applicants against lodged

5. In any case, the question as to whether applicants had illegally encroached upon the property pertains to public, 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 opposite party no.2, is nothing but with a view to harass the applicants.

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

7. 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 447 IPC and Section 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 3 NA528 No. 2419 of 2025 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.

8. 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 evidence that 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.

9. 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 applicants pursuant to Section 447 IPC and Section 3/5 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 19.03.2024 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. 4 NA528 No. 2419 of 2025 inherent powers under Section 528 BNSS, 10. Invoking chargesheet dated 28.12.2024 along with cognizance/summoning order dated 19.03.2024 passed in Criminal Case No.594 of 2024, arising out of Case Crime No.48 of 2021, under Section 447 IPC and Section 3/5 of Prevention of Damage to Public Property Act, 1984, P.S. Jaleshar, District- Etah, pending in the Court of learned Additional Chief Judicial Magistrate, Jaleshar, Etah, are hereby quashed.

11. The instant application stands allowed accordingly.

12. However, it is made clear that this order shall not preclude the revenue authorities to proceed against applicants, if required, in accordance with the strict provisions of U.P. Revenue Code, 2006. Order Date :- 18.8.2025 Vivek Kr.