High Court
Case Details
Neutral Citation No. - 2025:AHC:89380 Court No. - 74 Case :- APPLICATION U/S 482 No. - 37926 of 2024 Applicant :- Nasir Arafaat Lari Opposite Party :- State of U.P. and Another Counsel for Applicant :- M J Akhtar,Vipin Kumar Singh,Yakub Ali Counsel for Opposite Party :- G.A.
Legal Reasoning
Hon'ble Saurabh Srivastava,J. 1. Heard learned counsel for the applicant and learned A.G.A. for the State. 2. The instant application under section 482 Cr.P.C. has been preferred to quash the chargesheet dated 13.03.2023 as well as its cognizance order dated 29.03.2023 passed by Chief Judicial Magistrate, Kushinagar at Padrauna and entire criminal proceeding of Case No. 12656 of 2023 (State vs. Nasir Arafaat Lari and another) arising out of Case Crime No. 0176 of 2022, under sections 447, 420 of IPC and 2/3 of Prevention of Damage to Public Property Act, 1984, P.S. Khadda, District Kushinagar, pending in the Court of learned Chief Judicial Magistrate, Kushinagar at Padrauna, as well as to stay the further proceedings of abovementioned case. 3. Brief facts of the present case are that several respected persons made a complaint against the applicant regarding illegal possession over Arazi No. 303 having area 1.25 hectare which is recorded as Abadi and reserved for public purposes. In pursuance of aforesaid complaint, opposite party no. 2 namely Dinesh Kumar, Tehsildar Khadda, Kushinagar lodged a first information report dated 13.07.2022 bearing Case Crime No. 0176 of 2022 in pursuance of Section 447, 188, 120B IPC and 2/3 of Prevention of Damage to Public Property Act, 1984 against applicant. The applicant has, thus, caused damage and loss to the public property which is the land vested in Nagar Panchyat. After lodging of the FIR, the concerned Investigating Officer started inquiry and after conclusion of the same, preferred chargesheet dated 13.03.2023 against applicant which impugned the present petition. 4. Learned counsel for applicants has challenged the chargesheet 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. As far as the allegations of commission of offence of criminal trespass under Section 447 I.P.C. is concerned, it is contended that no such offence can be made out from the allegations in the first information report as even the date of entry of the applicants over the Gram Sabha land has not been indicated. 5. In any case, the question as to whether applicant has illegally encroached upon the land vested in Gram Panchayat, 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. Inspite of expiry of six months, no instructions have been received at the behest of learned Additional Government Advocate. Learned counsel for the applicant submitted his arguments on the basis of the judgments rendered by a Coordinate Bench in Application U/s 482 No. 9964 of 2020, Munshi Lal and another vs. State of U.P. and another decided on 6.8.2020 as well by this court in Application U/s 482 No.- 25320 of 2024, Jagdev And 2 Others Vs. State of U.P. and others decided on 8.4.2025 and Application U/s 482 No.- 3605 of 2025, Brahmdutt Yadav vs. State of U.P. & another decided on 15.4.2025 also and the similar ratio has been determined while adjudicating the controversy arising out of the same sections available in the First Information Report and charge sheet. 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 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 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 482 Cr.P.C. of the High Court, entire proceedings of the Case No. 12656 of 2023 (State vs. Nasir Arafaat Lari and another) arising out of Case Crime No. 0176 of 2022, under sections 447, 420 of IPC and 2/3 of Prevention of Damage to Public Property Act, 1984, P.S. Khadda, District Kushinagar, pending in the Court of learned Chief Judicial Magistrate, Kushinagar at Padrauna is hereby quashed only in respect of applicant namely, Nasir Arafaat Lari. 11. The instant application stands allowed. Order Date :- 26.5.2025 Rakesh Digitally signed by :- RAKESH SINGH High Court of Judicature at Allahabad