Others v. State Of U.P. Thru. Prin. Secy. Home Deptt., Lko. And Another

4. Submission of learned counsel for the applicants is that the F.I.R. has been lodged by opposite party No. 2 making allegation against the applicants and other co-accused that they have encroached upon the land 2 A482 No. 9515 of 2025 of the Chak Road, which is belonging to Gaon Sabha. The F.I.R. has been lodged under Section 447, I.P.C. and Section 2/3 of the Prevention of Damages to Public Property Act 1984 in Case Crime No. 140 of 2012. Thereafter, chargesheet has been filed against the applicants and summoning order has been issued without application of mind.

5. Learned counsel for the applicants has relied upon a judgment of Munshi Lal and anr. v. State of U.P. & anr., Application U/S 482 No. 9964 of 2020 (para Nos. 6, 7, 11, 15, 16, 17), which are reproduced hereunder, and has submitted hat the eviction suit could have been filed by opposite party No. 2, but certainly instituting criminal proceedings is bad. “6. Having heard the learned counsel for the applicants and perused the record. At the out set, we may note that complete mechanism has been provided under Section 67 of the Revenue Code, 2006 empowering the Gram Sabha or any other authority to take possession of any land under the provisions of the Revenue Code, where such property is entrusted or deemed to be entrusted to a Gram Sabha or other local authority and is damaged or misappropriated by anyone. The Sub-Divisional Officer of the concerned Sub-Division is empowered to take action on the information received from the Bhumi Prabandhak Samiti or other authority or the Lekhpal concerned about such illegal occupation or damage or misappropriation of the Gram Sabha Land. In case, any person is found in occupation of any such land in contravention of the provisions of the Revenue Code, the Sub-Divisional Officer has to issue notice to the person concerned to show cause as to :- (i) why compensation for damage, misappropriation or wrongful occupation specified in the notice be not recovered from him? (ii) why he should not be evicted from such land?

7. The person to whom such a notice is issued under sub- section (2) of Section 67 of the Code, can submit his reply disclosing his right or title or the nature of occupation over the land in question. In that case, the Sub-Divisional Officer has to 3 A482 No. 9515 of 2025 pass an order giving reasons for not accepting the explanation, if so, offered by the person concerned. The eviction from the land can only be ordered after disposal of the explanation offered by the person concerned keeping in line with the principles of natural justice by passing a reasoned and speaking order which shall disclose the application of mind by the Officer. The amount of compensation for damage or misappropriation of the property or for wrongful occupation, as the case may be, may be recovered from such person as arrears of land revenue. Under sub-section (4) of Section 67, the Officer is empowered to discharge the notice if he forms an opinion that the person showing cause is not guilty of causing the damage or misappropriation or wrongful occupation of the property in question. Any person aggrieved by the order of the Sub-Divisional Officer under sub-section (3) or sub-section (4) of Section 67 may prefer an appeal to the Collector within thirty days from the date of such order. The procedure for undertaking the proceedings under Section 67 of the Revenue Code, thus, is complete in itself and does not leave any scope for any further computation of damage for wrongful occupation, damage caused or misappropriation of Gram Sabha land. …… ……

11. 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. A need was felt to strengthen the law to enable the authorities to deal with cases of damage to public property. The "public property" as defined under Section 2(b) of the P.D.P.P. Act, 1984 means any property, whether immovable or movable (including any machinery) which is 4 A482 No. 9515 of 2025 owned by or in possession of or under the control of the Central or State Government or any local authority or any Corporation or any institution established by the Central, Provincial or State Act or its undertaking. Section 3 of the P.D.P.P. Act, 1984 provides that anyone who commits mischief by doing any act in respect of any 'public property' including the nature referred in sub-section (2) in the said section shall be punished with imprisonment and a fine depending upon the nature of the property as per sub-section (1) and sub-section (2) of Section 3 of the P.D.P.P. Act, 1984. Section 4 provides punishment for an act of 'Mischief' causing damage to pubic property by fire or explosive substance. The P.D.P.P. Act, 1984 is, thus, a Special Act enacted to punish for the offence committed under Sections 3 and 4 of the said Act by doing any act of vandalism including the destruction or damage during any riots or public demonstration in the name of agitations, bandhs, hartals and the like. The "Mischief" has been defined under Section 2(a) of the P.D.P.P. Act, 1984 having the same meaning as in Section 425 of the Indian Penal Code (45 of 1860). Section 6 is the saving clause which says that the Act' 1984 covers the offence committed under it and the provisions of it are in addition to any other law which provides for any proceeding (whether by way of investigation or otherwise) which may be instituted or taken against the offender, apart from this Act. Special provisions with regard to disposal of a prayer for bail made by a person accused of commission of offence under the Act' 1984 has been provided under Section 5 of the P.D.P.P. Act, 1984. The provisions oblige a person found guilty of commission of offence to pay the damage or loss caused to the public property. This Act, thus, covers the specific area of damage or loss or destruction of public property and recovery of such damages from the person(s) who is/are found guilty of such damage during the course of any public demonstration in the name of agitations, bandhs, hartals and the like. 5 A482 No. 9515 of 2025 ……. …….

15. 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 I.P.C. 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.

16. In the instant case, the allegations in the F.I.R. are general and vague against many persons with respect to different nature of lands. So far as the applicants herein both sons of Ganga Ram are concerned, it is averred in the FIR that they had encroached and damaged the public property belonging to Gram Sabha. The charge sheet does not disclose appreciation 6 A482 No. 9515 of 2025 of any particular material on record against the applicants. The order of taking cognizance passed by the Magistrate is a non-speaking order. In this case, the criminal action proposed against the applicants, thus, is a result of non-application of judicial mind.

17. Noteworthy is that the allegations against the applicants herein are of encroachment on 'Banjar' land and not on a 'public utility land', which can be regularized if a proceeding for eviction is instituted against the applicants under the Revenue Code, 2006 as they may take a defence of being landless labourers of the village concerned, i.e. of being eligible persons for allotment of land or reqularization of their occupation/possession.”

6. Further submission of the learned counsel for the applicants is that the F.I.R. is in general nature. Chargesheet does not disclose appreciation of any particular material or evidence and the order has been passed in mechanical manner. Gaon Sabha could have filed eviction suit, but certainly it was not open to institute criminal proceeding or file F.I.R. against the applicants, which is against the judgment of Munshi Lal (supra).

7. Learned A.G.A. has opposed the case and has submitted that the public property has been damaged and utilized by the applicants, therefore, the offence is made out and summoning order is correct.

8. After going through the judgment in the case of Munshi Lal (supra), I am also of the view that the order passed by the court below is mechanical and at the same time it was open for the opposite party No. 2 to file suit of eviction and the criminal proceeding could not have been initiated by lodging the F.I.R. The application is accordingly allowed. Entire proceeding of criminal case no. 68/2013, State Versus Sunil Kumar and others, Case crime no. 189/2012, under section 447, I.P.C. and section 3 Prevention of Damage to Public Property Act, relating to police station Chinhat, District Lucknow pending in the court of Additional Chief 7 A482 No. 9515 of 2025 Judicial Magistrate-Vth, Lucknow, including the impugned chargesheet no. 161/2012 dated 22.10.2012 as well as summoning order dated

29.01.2013 passed by Additional Chief Judicial Magistrate, 5th, Lucknow, passed in the said case, are hereby quashed.

9. It is open for the competent authority to initiate proceeding for eviction, if so permissible in law. November 17, 2025 A.Nigam (Brij Raj Singh,J.) ANUJ NIGAM High Court of Judicature at Allahabad, Lucknow Bench

4. Submission of learned counsel for the applicants is that the F.I.R. has been lodged by opposite party No. 2 making allegation against the applicants and other co-accused that they have encroached upon the land 2 A482 No. 9515 of 2025 of the Chak Road, which is belonging to Gaon Sabha. The F.I.R. has been lodged under Section 447, I.P.C. and Section 2/3 of the Prevention of Damages to Public Property Act 1984 in Case Crime No. 140 of 2012. Thereafter, chargesheet has been filed against the applicants and summoning order has been issued without application of mind.

5. Learned counsel for the applicants has relied upon a judgment of Munshi Lal and anr. v. State of U.P. & anr., Application U/S 482 No. 9964 of 2020 (para Nos. 6, 7, 11, 15, 16, 17), which are reproduced hereunder, and has submitted hat the eviction suit could have been filed by opposite party No. 2, but certainly instituting criminal proceedings is bad. “6. Having heard the learned counsel for the applicants and perused the record. At the out set, we may note that complete mechanism has been provided under Section 67 of the Revenue Code, 2006 empowering the Gram Sabha or any other authority to take possession of any land under the provisions of the Revenue Code, where such property is entrusted or deemed to be entrusted to a Gram Sabha or other local authority and is damaged or misappropriated by anyone. The Sub-Divisional Officer of the concerned Sub-Division is empowered to take action on the information received from the Bhumi Prabandhak Samiti or other authority or the Lekhpal concerned about such illegal occupation or damage or misappropriation of the Gram Sabha Land. In case, any person is found in occupation of any such land in contravention of the provisions of the Revenue Code, the Sub-Divisional Officer has to issue notice to the person concerned to show cause as to :- (i) why compensation for damage, misappropriation or wrongful occupation specified in the notice be not recovered from him? (ii) why he should not be evicted from such land?

7. The person to whom such a notice is issued under sub- section (2) of Section 67 of the Code, can submit his reply disclosing his right or title or the nature of occupation over the land in question. In that case, the Sub-Divisional Officer has to 3 A482 No. 9515 of 2025 pass an order giving reasons for not accepting the explanation, if so, offered by the person concerned. The eviction from the land can only be ordered after disposal of the explanation offered by the person concerned keeping in line with the principles of natural justice by passing a reasoned and speaking order which shall disclose the application of mind by the Officer. The amount of compensation for damage or misappropriation of the property or for wrongful occupation, as the case may be, may be recovered from such person as arrears of land revenue. Under sub-section (4) of Section 67, the Officer is empowered to discharge the notice if he forms an opinion that the person showing cause is not guilty of causing the damage or misappropriation or wrongful occupation of the property in question. Any person aggrieved by the order of the Sub-Divisional Officer under sub-section (3) or sub-section (4) of Section 67 may prefer an appeal to the Collector within thirty days from the date of such order. The procedure for undertaking the proceedings under Section 67 of the Revenue Code, thus, is complete in itself and does not leave any scope for any further computation of damage for wrongful occupation, damage caused or misappropriation of Gram Sabha land. …… ……

11. 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. A need was felt to strengthen the law to enable the authorities to deal with cases of damage to public property. The "public property" as defined under Section 2(b) of the P.D.P.P. Act, 1984 means any property, whether immovable or movable (including any machinery) which is 4 A482 No. 9515 of 2025 owned by or in possession of or under the control of the Central or State Government or any local authority or any Corporation or any institution established by the Central, Provincial or State Act or its undertaking. Section 3 of the P.D.P.P. Act, 1984 provides that anyone who commits mischief by doing any act in respect of any 'public property' including the nature referred in sub-section (2) in the said section shall be punished with imprisonment and a fine depending upon the nature of the property as per sub-section (1) and sub-section (2) of Section 3 of the P.D.P.P. Act, 1984. Section 4 provides punishment for an act of 'Mischief' causing damage to pubic property by fire or explosive substance. The P.D.P.P. Act, 1984 is, thus, a Special Act enacted to punish for the offence committed under Sections 3 and 4 of the said Act by doing any act of vandalism including the destruction or damage during any riots or public demonstration in the name of agitations, bandhs, hartals and the like. The "Mischief" has been defined under Section 2(a) of the P.D.P.P. Act, 1984 having the same meaning as in Section 425 of the Indian Penal Code (45 of 1860). Section 6 is the saving clause which says that the Act' 1984 covers the offence committed under it and the provisions of it are in addition to any other law which provides for any proceeding (whether by way of investigation or otherwise) which may be instituted or taken against the offender, apart from this Act. Special provisions with regard to disposal of a prayer for bail made by a person accused of commission of offence under the Act' 1984 has been provided under Section 5 of the P.D.P.P. Act, 1984. The provisions oblige a person found guilty of commission of offence to pay the damage or loss caused to the public property. This Act, thus, covers the specific area of damage or loss or destruction of public property and recovery of such damages from the person(s) who is/are found guilty of such damage during the course of any public demonstration in the name of agitations, bandhs, hartals and the like. 5 A482 No. 9515 of 2025 ……. …….

15. 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 I.P.C. 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.

16. In the instant case, the allegations in the F.I.R. are general and vague against many persons with respect to different nature of lands. So far as the applicants herein both sons of Ganga Ram are concerned, it is averred in the FIR that they had encroached and damaged the public property belonging to Gram Sabha. The charge sheet does not disclose appreciation 6 A482 No. 9515 of 2025 of any particular material on record against the applicants. The order of taking cognizance passed by the Magistrate is a non-speaking order. In this case, the criminal action proposed against the applicants, thus, is a result of non-application of judicial mind.

17. Noteworthy is that the allegations against the applicants herein are of encroachment on 'Banjar' land and not on a 'public utility land', which can be regularized if a proceeding for eviction is instituted against the applicants under the Revenue Code, 2006 as they may take a defence of being landless labourers of the village concerned, i.e. of being eligible persons for allotment of land or reqularization of their occupation/possession.”

6. Further submission of the learned counsel for the applicants is that the F.I.R. is in general nature. Chargesheet does not disclose appreciation of any particular material or evidence and the order has been passed in mechanical manner. Gaon Sabha could have filed eviction suit, but certainly it was not open to institute criminal proceeding or file F.I.R. against the applicants, which is against the judgment of Munshi Lal (supra).

7. Learned A.G.A. has opposed the case and has submitted that the public property has been damaged and utilized by the applicants, therefore, the offence is made out and summoning order is correct.

8. After going through the judgment in the case of Munshi Lal (supra), I am also of the view that the order passed by the court below is mechanical and at the same time it was open for the opposite party No. 2 to file suit of eviction and the criminal proceeding could not have been initiated by lodging the F.I.R. The application is accordingly allowed. Entire proceeding of criminal case no. 68/2013, State Versus Sunil Kumar and others, Case crime no. 189/2012, under section 447, I.P.C. and section 3 Prevention of Damage to Public Property Act, relating to police station Chinhat, District Lucknow pending in the court of Additional Chief 7 A482 No. 9515 of 2025 Judicial Magistrate-Vth, Lucknow, including the impugned chargesheet no. 161/2012 dated 22.10.2012 as well as summoning order dated

29.01.2013 passed by Additional Chief Judicial Magistrate, 5th, Lucknow, passed in the said case, are hereby quashed.

9. It is open for the competent authority to initiate proceeding for eviction, if so permissible in law. November 17, 2025 A.Nigam (Brij Raj Singh,J.) ANUJ NIGAM High Court of Judicature at Allahabad, Lucknow Bench