State v. Rajveer Singh) PS

Hon'ble Saurabh Srivastava,J.

1. Heard Sri Satya Prakash Dwivedi, learned counsel for applicant and learned AGA for State.

2. Present application has been preferred with prayer to quash entire criminal proceeding of Case no. 14 of 2025 arising out of Case Crime no. 232 of 2022 under section 447 IPC and 2/3 Prevention of Damage to Public Property Act,1984 (State vs. Rajveer Singh) PS- Shahbad, District Rampur presently pending in court of Additional Chief Judicial Magistrate, Court no. 1, Rampur as well as cognizance order dated 02.01.2025.

3. Brief facts of the present case are that a first information report dated 06.08.2022 bearing Case Crime No.232 of 2022 was lodged by Lekhpal/opposite party no.2 in pursuance of Section 2/3 of Prevention of Damage to Public Property Act, 1984 and 447 IPC against applicant alleging that applicant has encroached illegally over some part of Gata No.244 which is registered as Government Pond. The applicant had, thus, 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 on dated 02.10.2022 against applicant whereupon learned court concerned has taken cognizance/summoning of offence vide order dated 02.01.2025 which impugned the present petition.

4. 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 judicial mind in taking cognizance on the charge sheet submitted under Section 2/3 of the P.D.P.P. Act, 1984.

5. In any case, the question as to whether applicant had illegally encroached upon the land vested in Gram Sabha, 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. However, it is also submitted by learned counsel for applicant that alleged encroachment has already been removed.

6. 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.

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 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.

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 IPC 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.

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 applicant pursuant to Section 2/3 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 02.01.2025 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.

10. Invoking inherent powers under Section 528 BNSS of the High Court, entire proceedings of the Case no. 14 of 2025 arising out of Case Crime no. 232 of 2022 under section 447 IPC and 2/3 Prevention of Damage to Public Property Act,1984 (State vs. Rajveer Singh) PS- Shahbad, District Rampur is hereby quashed only in respect of applicant namely Rajveer Singh.

11. The instant application stands allowed. Order Date :- 13.8.2025 Shaswat

Hon'ble Saurabh Srivastava,J.

1. Heard Sri Satya Prakash Dwivedi, learned counsel for applicant and learned AGA for State.

2. Present application has been preferred with prayer to quash entire criminal proceeding of Case no. 14 of 2025 arising out of Case Crime no. 232 of 2022 under section 447 IPC and 2/3 Prevention of Damage to Public Property Act,1984 (State vs. Rajveer Singh) PS- Shahbad, District Rampur presently pending in court of Additional Chief Judicial Magistrate, Court no. 1, Rampur as well as cognizance order dated 02.01.2025.

3. Brief facts of the present case are that a first information report dated 06.08.2022 bearing Case Crime No.232 of 2022 was lodged by Lekhpal/opposite party no.2 in pursuance of Section 2/3 of Prevention of Damage to Public Property Act, 1984 and 447 IPC against applicant alleging that applicant has encroached illegally over some part of Gata No.244 which is registered as Government Pond. The applicant had, thus, 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 on dated 02.10.2022 against applicant whereupon learned court concerned has taken cognizance/summoning of offence vide order dated 02.01.2025 which impugned the present petition.

4. 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 judicial mind in taking cognizance on the charge sheet submitted under Section 2/3 of the P.D.P.P. Act, 1984.

5. In any case, the question as to whether applicant had illegally encroached upon the land vested in Gram Sabha, 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. However, it is also submitted by learned counsel for applicant that alleged encroachment has already been removed.

6. 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.

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 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.

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 IPC 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.

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 applicant pursuant to Section 2/3 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 02.01.2025 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.

10. Invoking inherent powers under Section 528 BNSS of the High Court, entire proceedings of the Case no. 14 of 2025 arising out of Case Crime no. 232 of 2022 under section 447 IPC and 2/3 Prevention of Damage to Public Property Act,1984 (State vs. Rajveer Singh) PS- Shahbad, District Rampur is hereby quashed only in respect of applicant namely Rajveer Singh.

11. The instant application stands allowed. Order Date :- 13.8.2025 Shaswat