State of U.P. and Another v. Party

HON'BLE SAURABH SRIVASTAVA, J.

1. Heard Sri Zafeer Ahmad, learned counsel for applicants and learned AGA for State.

2. Present application has been preferred with the prayer to quash the

18.09.2021, impugned cognizance/summoning order dated 18.10.2021 and the entire proceedings of no.388 charge 2021 Case no.2430 of 2021 (State vs. Navi Husain and Others) arising out of Case Crime no. 436 of 2021, under Section 379 IPC and Section 4/21 of Mines and Minerals (Development and Regulation) Act, 1957 and Sections 2/3 of Prevention of Damages to Public Property Act, 1984, PS- Swar, District- Rampur, pending before learned Ist Additional Civil Judge (Senior Division), Rampur. Furthermore, this Court may please to stay the proceeding of the aforementioned case till pendency of present application before this Court.

3. Learned counsel for applicants submitted that initially FIR has been lodged by opposite party no. 2 against the applicants for the offence under Section 379 IPC and Section 4/21 of Mines and Minerals (Development and Regulation) Act, 1957 and Sections 2/3 of Prevention of Damages to Public Property Act, 1984. After concluding investigation, concerned Investigating Officer submitted impugned charge sheet on dated 18.09.2021 against the present applicants under Section 379 IPC and Section 4/21 of Mines and Minerals (Development and Regulation) Act, 1957 and Sections 2/3 of Prevention of Damages to Public Property Act, 1984, whereupon learned Magistrate concerned took cognizance vide impugned order dated 2 NA528 No. 34784 of 2025

18.10.2021 opining therein that from perusal of case diary there is sufficient ground for taking cognizance under Section 379 IPC and Section 4/21 of Mines and Minerals (Development and Regulation) Act, 1957 and Sections 2/3 of Prevention of Damages to Public Property Act, 1984

4. So far as sections 2/3 of P.D.P.P. Act, 1984 is concerned, learned counsel applicants challenged charge-sheet as well 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 public land. The Magistrate has acted illegally and without application of judicial mind in taking cognizance on the charge sheet submitted under Sections 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/public property, 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 opposite party no.2 is nothing but with a view to harass the applicants.

6. Thereafter with regard to sections 4/21 of Mines and Minerals Act, learned counsel for applicants further challenged the entire proceeding on the ground that admittedly the Act of 1957 is Special Act and Section 22 of the said Act clearly provides that in respect of any offence punishable under the Act or any rules made thereunder, no court shall take cognizance except upon complaint made in writing by a person authorized in this behalf by Central Government or State Government. For substantiating his argument, learned counsel for applicants relied upon judgment rendered by Hon'ble Apex Court in case of Jayant and others vs. State of Madhya Pradesh reported in (2021) 2 SCC 670, wherein it has been observed that even if the charge sheet is filed by the police after the investigation then for the offence under the Indian Penal Code, learned Magistrate can take cognizance but for the offence under the Act, 1957, learned Magistrate cannot take cognizance on the basis of that charge sheet and it is further observed that the Magistrate can take cognizance only when the complaint is filed by the authorized officer along with that charge sheet for the offence under the Act, 1957. He 3 NA528 No. 34784 of 2025 also relied upon judgment rendered by co-ordinate Bench of this Court passed on dated 14.05.2024 in Application u/s 482 no. 11544 of 2019 (Ajay Kumar vs. State of U.P. and Anr.).

7. So far as section 379 I.P.C. is concerned, learned counsel for applicants submitted that the alleged theft as mentioned in the F.I.R. whereupon the charge-sheet has been preferred, is related to mines and minerals only and if the proper procedure would have been adopted by concerned authorities in shape of preferring complaint and as such separately section 379 I.P.C. is not amenable in reference to the theft if committed by anyone or the applicants in pursuance to mines and minerals only.

8. 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.

9. After hearing the rival submissions extended by learned counsels for the parties and perusing the records, it transpires that in pursuance to judgment rendered by Hon'ble Apex Court in case of Jayant and others (supra) as well as by this Court in Ajay Kumar (supra), since it is apparent that over the charge sheet the cognizance has been taken up by learned concerned court with regard to Sections 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957 also on dated 18.10.2021 itself and as such the same is not permissible in the eye of law as enunciated in the case of Jayant and others (supra).

10. 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/public land 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. 4 NA528 No. 34784 of 2025

11. 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 Sections 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 18.10.2021 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.

12. Since the instant matter has been argued by learned counsel appearing for applicants only on the basis of legal issues, especially relying upon the judgment of Hon'ble Apex Court as well as coordinate Bench of this Court, there is no occasion available with the prosecution to continue and pursue the matter arising out of Case Crime no.436 of 2021 and the impugned cognizance/summoning order dated 18.10.2021 is hereby quashed and consequential proceeding in pursuance to the above cognizance/summoning order dated 18.10.2021 is also quashed.

13. The instant petition stands allowed accordingly.

14. However, it is made clear that above mentioned direction will not preclude the authorities concerned to proceed afresh against the applicants, if required in pursuance to procedure available at law. September 11, 2025 Saif (Saurabh Srivastava,J.) SHAIKH SAIF ABDIN SHAIKH SAIF ABDIN High Court of Judicature at Allahabad High Court of Judicature at Allahabad

HON'BLE SAURABH SRIVASTAVA, J.

1. Heard Sri Zafeer Ahmad, learned counsel for applicants and learned AGA for State.

2. Present application has been preferred with the prayer to quash the

18.09.2021, impugned cognizance/summoning order dated 18.10.2021 and the entire proceedings of no.388 charge 2021 Case no.2430 of 2021 (State vs. Navi Husain and Others) arising out of Case Crime no. 436 of 2021, under Section 379 IPC and Section 4/21 of Mines and Minerals (Development and Regulation) Act, 1957 and Sections 2/3 of Prevention of Damages to Public Property Act, 1984, PS- Swar, District- Rampur, pending before learned Ist Additional Civil Judge (Senior Division), Rampur. Furthermore, this Court may please to stay the proceeding of the aforementioned case till pendency of present application before this Court.

3. Learned counsel for applicants submitted that initially FIR has been lodged by opposite party no. 2 against the applicants for the offence under Section 379 IPC and Section 4/21 of Mines and Minerals (Development and Regulation) Act, 1957 and Sections 2/3 of Prevention of Damages to Public Property Act, 1984. After concluding investigation, concerned Investigating Officer submitted impugned charge sheet on dated 18.09.2021 against the present applicants under Section 379 IPC and Section 4/21 of Mines and Minerals (Development and Regulation) Act, 1957 and Sections 2/3 of Prevention of Damages to Public Property Act, 1984, whereupon learned Magistrate concerned took cognizance vide impugned order dated 2 NA528 No. 34784 of 2025

18.10.2021 opining therein that from perusal of case diary there is sufficient ground for taking cognizance under Section 379 IPC and Section 4/21 of Mines and Minerals (Development and Regulation) Act, 1957 and Sections 2/3 of Prevention of Damages to Public Property Act, 1984

4. So far as sections 2/3 of P.D.P.P. Act, 1984 is concerned, learned counsel applicants challenged charge-sheet as well 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 public land. The Magistrate has acted illegally and without application of judicial mind in taking cognizance on the charge sheet submitted under Sections 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/public property, 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 opposite party no.2 is nothing but with a view to harass the applicants.

6. Thereafter with regard to sections 4/21 of Mines and Minerals Act, learned counsel for applicants further challenged the entire proceeding on the ground that admittedly the Act of 1957 is Special Act and Section 22 of the said Act clearly provides that in respect of any offence punishable under the Act or any rules made thereunder, no court shall take cognizance except upon complaint made in writing by a person authorized in this behalf by Central Government or State Government. For substantiating his argument, learned counsel for applicants relied upon judgment rendered by Hon'ble Apex Court in case of Jayant and others vs. State of Madhya Pradesh reported in (2021) 2 SCC 670, wherein it has been observed that even if the charge sheet is filed by the police after the investigation then for the offence under the Indian Penal Code, learned Magistrate can take cognizance but for the offence under the Act, 1957, learned Magistrate cannot take cognizance on the basis of that charge sheet and it is further observed that the Magistrate can take cognizance only when the complaint is filed by the authorized officer along with that charge sheet for the offence under the Act, 1957. He 3 NA528 No. 34784 of 2025 also relied upon judgment rendered by co-ordinate Bench of this Court passed on dated 14.05.2024 in Application u/s 482 no. 11544 of 2019 (Ajay Kumar vs. State of U.P. and Anr.).

7. So far as section 379 I.P.C. is concerned, learned counsel for applicants submitted that the alleged theft as mentioned in the F.I.R. whereupon the charge-sheet has been preferred, is related to mines and minerals only and if the proper procedure would have been adopted by concerned authorities in shape of preferring complaint and as such separately section 379 I.P.C. is not amenable in reference to the theft if committed by anyone or the applicants in pursuance to mines and minerals only.

8. 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.

9. After hearing the rival submissions extended by learned counsels for the parties and perusing the records, it transpires that in pursuance to judgment rendered by Hon'ble Apex Court in case of Jayant and others (supra) as well as by this Court in Ajay Kumar (supra), since it is apparent that over the charge sheet the cognizance has been taken up by learned concerned court with regard to Sections 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957 also on dated 18.10.2021 itself and as such the same is not permissible in the eye of law as enunciated in the case of Jayant and others (supra).

10. 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/public land 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. 4 NA528 No. 34784 of 2025

11. 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 Sections 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 18.10.2021 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.

12. Since the instant matter has been argued by learned counsel appearing for applicants only on the basis of legal issues, especially relying upon the judgment of Hon'ble Apex Court as well as coordinate Bench of this Court, there is no occasion available with the prosecution to continue and pursue the matter arising out of Case Crime no.436 of 2021 and the impugned cognizance/summoning order dated 18.10.2021 is hereby quashed and consequential proceeding in pursuance to the above cognizance/summoning order dated 18.10.2021 is also quashed.

13. The instant petition stands allowed accordingly.

14. However, it is made clear that above mentioned direction will not preclude the authorities concerned to proceed afresh against the applicants, if required in pursuance to procedure available at law. September 11, 2025 Saif (Saurabh Srivastava,J.) SHAIKH SAIF ABDIN SHAIKH SAIF ABDIN High Court of Judicature at Allahabad High Court of Judicature at Allahabad