Munshi Lal and Another v. State of U.P. and another), quashed the entire proceeding u/s

Hon'ble Saurabh Srivastava,J.

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

2. The instant application under section 528 BNSS has been preferred to quash the chargesheet dated 13.04.2022 as well as cognizance/summoning order dated 19.01.2023 including entire criminal proceeding of Case No. 314 of2023 (State vs. Ashok Kumar and others) arising out of Case Crime No. 412 of 2021, under sections 2/3 of Prevention of Damage to Public Property Act, 1984, P.S. Sarai Akil, District Kaushambi, pending in the Court of learned Chief Judicial Magistrate, Kaushambi as well as to stay the further proceedings of abovementioned case.

3. Brief facts of the present case are that a first information report dated 20.11.2021 bearing Case Crime No. 412 of 2021 was lodged by opposite party no.2-Lekhpal in pursuance of Section 2/3 of Prevention of Damage to Public Property Act, 1984 against applicants and one other co-accused alleging therein that on 17.11.2021 on direction of Sub-Divisional Magistrate, Chayal, Nayab Tehsildar along with police personal went on inspection. On spot as well as documentary inspection, it is found that Gata no. 866 Miljumala area 2.9220 hectare has been registered in Banjar Khata and Gata no. 866 Miljumala area 0.2280 hectare has been registered in the name of one Sheetal Prasad in Khatauni and landholder has been constructed the house of entire area and Gata no. 866 Miljumla area 2.9220 hectare has been registered as Banjar Land which is Gram Sabha Land. On the aforesaid land, the instant applicants and one Jai Prakash @ Munna taken the encroachment on the aforesaid land and constructed the house and revenue team stop the encroachment and it is also found that on Gata no. 866 Miljumala area 0.0170 hectare, Santosh Mishra has constructed the residential house before 3 years, while the accused persons were not stop the illegal construction. The applicants have, 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 13.04.2022 against applicants and other co-accused whereupon learned court concerned has taken cognizance of offence vide order dated 19.01.2023 which impugned the present petition.

4. Learned counsel for applicants 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 applicants have 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 applicants.

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 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 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. 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 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 19.01.2023 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.

9. Invoking inherent powers under Section 528 BNSS of the High Court, entire proceedings of the Case No. 314 of2023 (State vs. Ashok Kumar and others) arising out of Case Crime No. 412 of 2021, under sections 2/3 of Prevention of Damage to Public Property Act, 1984, P.S. Sarai Akil, District Kaushambi, pending in the Court of learned Chief Judicial Magistrate, Kaushambi is hereby quashed only in respect of present applicants only.

10. The instant application stands allowed. Order Date :- 19.5.2025 #Vik/- VIKRAM GUPTA VIKRAM GUPTA High Court of Judicature at Allahabad High Court of Judicature at Allahabad

Hon'ble Saurabh Srivastava,J.

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

2. The instant application under section 528 BNSS has been preferred to quash the chargesheet dated 13.04.2022 as well as cognizance/summoning order dated 19.01.2023 including entire criminal proceeding of Case No. 314 of2023 (State vs. Ashok Kumar and others) arising out of Case Crime No. 412 of 2021, under sections 2/3 of Prevention of Damage to Public Property Act, 1984, P.S. Sarai Akil, District Kaushambi, pending in the Court of learned Chief Judicial Magistrate, Kaushambi as well as to stay the further proceedings of abovementioned case.

3. Brief facts of the present case are that a first information report dated 20.11.2021 bearing Case Crime No. 412 of 2021 was lodged by opposite party no.2-Lekhpal in pursuance of Section 2/3 of Prevention of Damage to Public Property Act, 1984 against applicants and one other co-accused alleging therein that on 17.11.2021 on direction of Sub-Divisional Magistrate, Chayal, Nayab Tehsildar along with police personal went on inspection. On spot as well as documentary inspection, it is found that Gata no. 866 Miljumala area 2.9220 hectare has been registered in Banjar Khata and Gata no. 866 Miljumala area 0.2280 hectare has been registered in the name of one Sheetal Prasad in Khatauni and landholder has been constructed the house of entire area and Gata no. 866 Miljumla area 2.9220 hectare has been registered as Banjar Land which is Gram Sabha Land. On the aforesaid land, the instant applicants and one Jai Prakash @ Munna taken the encroachment on the aforesaid land and constructed the house and revenue team stop the encroachment and it is also found that on Gata no. 866 Miljumala area 0.0170 hectare, Santosh Mishra has constructed the residential house before 3 years, while the accused persons were not stop the illegal construction. The applicants have, 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 13.04.2022 against applicants and other co-accused whereupon learned court concerned has taken cognizance of offence vide order dated 19.01.2023 which impugned the present petition.

4. Learned counsel for applicants 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 applicants have 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 applicants.

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 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 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. 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 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 19.01.2023 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.

9. Invoking inherent powers under Section 528 BNSS of the High Court, entire proceedings of the Case No. 314 of2023 (State vs. Ashok Kumar and others) arising out of Case Crime No. 412 of 2021, under sections 2/3 of Prevention of Damage to Public Property Act, 1984, P.S. Sarai Akil, District Kaushambi, pending in the Court of learned Chief Judicial Magistrate, Kaushambi is hereby quashed only in respect of present applicants only.

10. The instant application stands allowed. Order Date :- 19.5.2025 #Vik/- VIKRAM GUPTA VIKRAM GUPTA High Court of Judicature at Allahabad High Court of Judicature at Allahabad