Hon'ble Saurabh Srivastava,J v. PS- Mohammadabad, District- Ghazipur arising out of charge

Hon'ble Saurabh Srivastava,J.

1. Heard Sri Brij Bhushan Pandey, learned counsel for applicant and learned A.G.A for the State-respondent.

2. By means of the present application, applicant has sought quashing of the cognizance/summoning order dated 16.12.2022 and entire proceeding of Criminal Case no. 1377 of 2022 (State vs. Maqsood and others), in Case Crime no. 0184 of 2022, under Section 3/5 of Prevention of Damage to Public Property Act, 1984, PS- Mohammadabad, District- Ghazipur arising out of charge sheet dated 13.09.2022 and further stay the proceeding of Criminal Case no. 1377 of 2022 (State vs. Maqsood and others) in Case Crime no. 0184 of 2022, under Section 3/5 of Prevention of Damage to Public Property Act, 1984, PS- Mohammadabad, District- Ghazipur pending in the court of learned Judicial Magistrate, Court no. 1, Ghazipur.

3. Brief facts of the present case are that a first information report has been lodged by opposite party no. 2/lekhpal on dated 17.07.2022 as Case Crime no. 0184 of 2022 under Section 3/5 of Prevention of Damage to Public Property Act, 1984, PS- Mohammadabad, District- Ghazipur alleging therein that on Tehsil divas a complaint has been made by one Shashi Kant Sharma on which a team of Revenue Inspector reached on spot and during the inquiry it has been found that one Ishrat Jahan wife of Mahboob Alam, Samsul Haq son of Saddique Alam and Masood Alam son of Mansoor Alam sold the Arazi no. 37 and after making plotting, possession has been given over Arazi no. 31 which is recorded as Navin Parati and Ishrat Jahan wife of Mahboob Alam removed her possession while Samsul Haq son of Saddique Alam and Maqsood Alam son of Mansoor Alam are in possession by raising pakka wall. However, name of applicant was not mentioned in the FIR. During course of investigation, it was found that only on the basis of false report dated 23.06.2022 of opposite party no. 2 a proceeding under Section 67(1) of U.P.Revenue Code, 2006 was initiated against the applicant and only on that basis, name of applicant has been roped in the present case by way of preferring charge sheet against the applicant and other persons on dated 13.09.2022 whereupon cognizance has been taken up vide impugned order dated 16.12.2022 which has been challenged through the instant petition.

4. Learned counsel for applicant has challenged the charge sheet 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 3/5 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.

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. 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 16.12.2022 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 Criminal Case no. 1377 of 2022 (State vs. Maqsood and others), in Case Crime no. 0184 of 2022, under Section 3/5 of Prevention of Damage to Public Property Act, 1984, PS- Mohammadabad, District- Ghazipur arising out of charge sheet dated 13.09.2022 is hereby quashed only in respect of applicant namely Md Danish.

10. The instant application stands allowed. Order Date :- 5.4.2025 Shaswat SHASWAT SINGH SHASWAT SINGH High Court of Judicature at Allahabad High Court of Judicature at Allahabad

Hon'ble Saurabh Srivastava,J.

1. Heard Sri Brij Bhushan Pandey, learned counsel for applicant and learned A.G.A for the State-respondent.

2. By means of the present application, applicant has sought quashing of the cognizance/summoning order dated 16.12.2022 and entire proceeding of Criminal Case no. 1377 of 2022 (State vs. Maqsood and others), in Case Crime no. 0184 of 2022, under Section 3/5 of Prevention of Damage to Public Property Act, 1984, PS- Mohammadabad, District- Ghazipur arising out of charge sheet dated 13.09.2022 and further stay the proceeding of Criminal Case no. 1377 of 2022 (State vs. Maqsood and others) in Case Crime no. 0184 of 2022, under Section 3/5 of Prevention of Damage to Public Property Act, 1984, PS- Mohammadabad, District- Ghazipur pending in the court of learned Judicial Magistrate, Court no. 1, Ghazipur.

3. Brief facts of the present case are that a first information report has been lodged by opposite party no. 2/lekhpal on dated 17.07.2022 as Case Crime no. 0184 of 2022 under Section 3/5 of Prevention of Damage to Public Property Act, 1984, PS- Mohammadabad, District- Ghazipur alleging therein that on Tehsil divas a complaint has been made by one Shashi Kant Sharma on which a team of Revenue Inspector reached on spot and during the inquiry it has been found that one Ishrat Jahan wife of Mahboob Alam, Samsul Haq son of Saddique Alam and Masood Alam son of Mansoor Alam sold the Arazi no. 37 and after making plotting, possession has been given over Arazi no. 31 which is recorded as Navin Parati and Ishrat Jahan wife of Mahboob Alam removed her possession while Samsul Haq son of Saddique Alam and Maqsood Alam son of Mansoor Alam are in possession by raising pakka wall. However, name of applicant was not mentioned in the FIR. During course of investigation, it was found that only on the basis of false report dated 23.06.2022 of opposite party no. 2 a proceeding under Section 67(1) of U.P.Revenue Code, 2006 was initiated against the applicant and only on that basis, name of applicant has been roped in the present case by way of preferring charge sheet against the applicant and other persons on dated 13.09.2022 whereupon cognizance has been taken up vide impugned order dated 16.12.2022 which has been challenged through the instant petition.

4. Learned counsel for applicant has challenged the charge sheet 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 3/5 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.

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. 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 16.12.2022 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 Criminal Case no. 1377 of 2022 (State vs. Maqsood and others), in Case Crime no. 0184 of 2022, under Section 3/5 of Prevention of Damage to Public Property Act, 1984, PS- Mohammadabad, District- Ghazipur arising out of charge sheet dated 13.09.2022 is hereby quashed only in respect of applicant namely Md Danish.

10. The instant application stands allowed. Order Date :- 5.4.2025 Shaswat SHASWAT SINGH SHASWAT SINGH High Court of Judicature at Allahabad High Court of Judicature at Allahabad