Allahabad High Court
Prabhakant And Another vs State Of U.P. And Another on 13 July, 2023
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Neutral Citation No. - 2023:AHC:138785
Court No. -67
Case : - APPLICATION U/S 482 No.-398 of 2023
Applicant : - Prabhakant And Another
Opposite Party : - State of U.P. and Another
Counsel for Applicant : - Shailendra Kumar Tripathi
Counsel for Opposite Party : - G.A.
AND
Case : - APPLICATION U/S 482 No.-8168 of 2023
Applicant : - Sajid And 8 Another
Opposite Party : - State of U.P. and Another
Counsel for Applicant : - Nitin Sharma
Counsel for Opposite Party : - G.A.
Hon'ble Rahul Chaturvedi,J.
(1). In these two applications u/s 482 Cr.P.C. the petitioners are assailing the legality and validity of summoning/cognizance orders passed by the respective courts below summoning the accused-applicants u/s 3(2)A of the Prevention of Damages to Public Property Act, 1984. Since there is common legal question involved in both the petitions that cognizance orders passed by the respective Magistrates are not sustainable in the eyes of law as the same have been passed on a printed proforma without applying its judicial application of mind. Therefore, under these circumstances, both these petitions are being decided by this common judgment.
(2). Heard S/Shri Anurag Dubey and Nitin Sharma, learned counsel for the respective applicants; S/Shri Satendra Tiwari, Faraz Kazmi and Ajay Kumar Sharma, learned Additional Government Advocates. Perused the entire record of the case.
(3). To appreciate the controversy involved it is imperative to give a bird's eye view to the factual aspects of the issue and respective proceedings.
(4). FACTS OF APPLICATION U/S 482 No.-398 of 2023 :
By means of the present application the extraordinary powers of this Court is being invoked seeking the quashing of entire criminal proceeding of Case No.1588 of 2018 (State vs. Bhawarpal Singh and others), charge sheet dated 20.6.2016, arising out of Case Crime No.149 of 2016, u/s 3(2)A of Prevention of Damages to Public Property Act, Police Station Tirwa, District Kannauj, pending in the Court of Additional Chief Judicial Magistrate, Kannauj and summoning/cognizance order dated 27.10.2018.
(5). Long and short of this case is that the applicant along with other co-villagers have allegedly encroached upon a land of pond situated over Gata No.2029 (Mi) having area 0.490 hectare. On this score an F.I.R. was lodged for an unknown time and date of the incident, by opposite party no.2 on 22.3.2016 at 16.50 hours against the applicants and 21 others.
(a) After lodging of the F.I.R., investigating Officer of the case has visited the place of incident and prepare a site plan. In addition to this, the Investigating Officer of the case has recorded the statement of the then Village Pradhan on 21.4.2016 u/s 161 Cr.P.C. Investigating Officer without holding in-depth probe into the matter and without holding any proper measurement of the land in dispute, in a most cursory and perfunctory manner, has submitted a report u/s 173(2) Cr.P.C. on 20.6.2016. After submission of report u/s 173(2) Cr.P.C., as per prevalent practice now-a-days, the learned A.C.J.M., Kannauj on a printed proforma, after filling in the blanks, on 27.10.2018 has taken cognizance of the offences u/s 3(2)A of the Prevention of Damages to Public Property Act, 1984 (for the sake of brevity hereinafter referred to as 'PDPP Act'), against the applicants and others. It is argued by the counsel for applicant that there is total non-application of judicial mind while taking cognizance of the offence.
(b) It is interesting to point out here, that the concerned Magistrate has not even named the charge-sheeted accused persons in his cognizance order and calling upon them to face the criminal trial. It is argued by learned counsel for the applicant, that it is the height of total non application of mind by the concerned Magistrate, who has not even named the accused persons in the cognizance order. It has been strenuously submitted by learned counsel for the applicant that through various judgments this Court has time and again have deprecated this practice of taking cognizance on a printed proforma in a most cursory and perfunctory fashion. Further submission is that learned Magistrate ought to have at least named the persons against whom he is going to prosecute for the alleged offence u/s 3(2)A of PDPP Act. Since the way and manner in which the cognizance was taken by the concerned Magistrate, all the accused persons were unaware that any such proceeding is pending against them and only after coming to know, off late all the accused persons have contacted their local counsels to inquire about the truthfulness of the alleged cognizance order.
(6). FACTS OF CRL. MISC. APPLICATION U/S 482 NO.8168 OF 2023:
In the instant 482 application, there are as many as nine applicants, who are jointly assailing the charge sheet No.406 of 2018 dated 03.09.2018 and entire proceeding of Criminal Case No.8511 of 2022 (Sate vs. Sajid and others), arising out of Case Crime No.0432 of 2018, u/s 3 of the Prevention of Damage to Public Property Act, 1984, Police Station Kairana, District Shamli along with cognizance and summoning order dated 04.10.2018 passed by the Civil Judge (S.D.)/Additional Chief Judicial Magistrate, Shamli.
(a) The prosecution story in brief is that one Baleshwar Das (Area Lekhpal) has lodged an F.I.R. at Police Station Kairana, District Shamli on 27.7.2018 which was registered as Case Crime No.0432 of 2018 u/s 3 of the Prevention of Damage to Public Property Act, 1984. From the F.I.R. it is clear that it was registered as many as 11 named accused persons including the name of Ashraf and Jamila, who died much prior to lodging of the F.I.R. After lodging of the F.I.R., the police have conducted a superficial perfunctory investigation and completed its homework after recording the statements u/s 161 Cr.P.C. of the informant, Jahid and Revenue Inspector Ashutosh Kumar, who have supported the prosecution story, as mentioned in the F.I.R. that the named accused persons have encroached upon a public dran passing through Khata No.176 and chak road passing through Khata No.177 and are cultivating their crops over the said encroached land. Despite of the fact that they were warned by the Tehsildar to remove the encroachment, they have simply ignored the warning given by Tehsildar, maintained their possession over the property in question. The I.O. of the case have visited the place of incident on 03.9.2018 and recorded that there was no demarcation between the agricultural land of the accused persons and the public drain as well as chak road. From this, the Investigating Officer has inferred that the accused persons have encroached upon the land and are tilling the same. This inference is litarally unfounded and whimsical. Though the accused persons have got their agricultural land adjacent to the chak road and public drain, but there is no line of demarcation, therefore, it cannot be said with certainty that the boundaries demarcating the fields as well as chak road might have been blurred and its identity cannot be ascertained.
(b). It is contended by learned counsel for the applicant that the Investigating Officer of the case has got no mechanism to demarcate the land and prima facie it seems that accused persons have transgressed their limits and encroached upon the land. It is not expected from the I.O. that he would make a physical measurement of the land and get it demarcated. On this, learned counsel for the applicant has argued that the undercurrent of entire controversy is purely a revenue dispute and no criminality could be attached to it. But the Investigating Officer of the case without ascertaining the allegations of the F.I.R., on a demarcated line, proceeded and submitted a charge sheet against the applicants on 3.9.2018 u/s 3(2)A of PDPP Act. Contention is that after submission of charge sheet, the Additional Chief Judicial Magistrate, Shamli again on a printed proforma without mentioning that under what section the cognizance has been taken by him. This cognizance order was passed on 04.10.2018 on a printed proforma after filling in the blanks, clearly indicative of the fact that there is total non application of mind by the concerned Magistrate. This practice has been condemned and deprecated by the Hon'ble Apex Court as well as this Court in a number of decisions, but it seems that those decisions have got no value for the concerned Magistrate and he is still proceeding and taking cognizance in an old fashion.
LEGAL DISCUSSION :
(7). From the above factual background and the contentions advanced by learned counsel for the applicants, the following questions of law involved in the present matter have cropped up for consideration :
(i). Whether the charge-sheeted accused persons could be branded as they have committed the wrongful occupation and possession or mischief by encroaching upon the land belonging to the Central Government/State Government or any local authority or corporation or institution established by the Central, Provincial or State Act or its undertaking.
(ii). Object and reasons of the Prevention of Damages to Public Property Act, 1984.
(iii) Section 3 of the Prevention of Damages to Public Property Act, 1984 QUA Section 67 of the Uttar Pradesh Revenue Code and Rules.
(iv) Whether the I.O. of the case is empowered to hold actual physical measurement over the land in question and declare that the accused-applicants were the real and actual encroachers of the land.
(v) Taking the allegations per se on the face of the F.I.R., it could be rectified only after having the actual physical measurement of the land in dispute by a competent authority.
(vi) Whether the concerned Magistrate was justified in taking the cognizance of the offences on a printed proforma by filling in the blanks.
Let's examine these legal aspects of the issue one by one.
(8). The allegations made in the F.I.R. against the applicants are that they are in wrongful occupation of the land in dispute belonging to the local authority, cannot come within the realm of mischief or wrongful occupation, till such time its actual physical measurement is not conducted by the authority concerned. Site plan prepared by the Investigating officer is only a narration of the fact that the applicants are conducting their farming and cultivating over the land in dispute, but the Investigating Officer cannot decide it unless and until actual demarcation is being done by the competent revenue authority after holding the exercise of measurement and establishing its identity. In absence of this vital link, it cannot be said with certainty that charge-sheeted accused persons have swelled their limits and encroached upon the land of others.
(9). The underline object and idea of enacting the Prevention of Damages to Public Property Act, 1984 is 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 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 subsection (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 public 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 or 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.
(10). In Re. Destruction of Public and Private Properties, In Re vs. State of Andhra Pradesh and others, 2009 (5) SCC 212. Taking a serious note of various instances where there was a large scale destruction of public and private properties in the name of agitations, bandhs, hartals and the like, suo motu proceedings had been initiated by the Apex Court and two committees were appointed to give suggestions on strengthening of the legal provisions of P.D.P.P. Act to effectively deal with such instances. The recommendation of two committees were considered and it was observed that the suggestions were extremely important and they constitute sufficient guidelines which need to be adopted. It was left open to the appropriate authorities to take effective steps for their implementation.
(11). In a recent decision in Kodungallur Film Society and another vs. Union of India and others, 2018 (10) SCC 713, the relief was sought to issue a mandamus to the appropriate authorities to strictly follow and implement the guidelines formulated by the Apex Court "Destruction of Public & Private Properties In re:", with regard to measures to be taken to prevent destruction of public and private properties in mass protests and demonstrations and also regarding the modalities of fixing liability and recovering compensation for damages caused to public and private properties during such demonstration and protests.
(12). It was acknowledged in Kodungallur Film Society that the recommendations of the Committee noted in the said judgment traversed the length and breadth of the issue at hand and, if implemented in their entirely, would go a long way in removing the bane of violence caused against persons and property. As far as implementation of the said recommendations, the Union had advised the States to follow the same in its letter and spirit. Issuing directions to implement recommendations made by the Apex Court in both the above decisions. Direction was issued in Kodungallur Film Society to both the Central and the State Government to do the same at the earliest.
(13). From the aforesaid it is clear that the underline purpose and idea of enacting the Prevention of Damages to Public Property Act, 1984 is to provide benefits to those persons or to take a suitable remedial action to prevent the destruction of public and private properties in mass protest, demonstration, hartal, agitation and in this damage to the public and private properties, pursuant to the ratio laid down by Hon'ble Apex Court in the case of Kodungallur Film Society (supra) the State Governments were granted liberty to form a committee to carry out and implement the recommendations made by the Hon'ble Apex Court in the above decision. Accordingly, the State of Uttar Pradesh too has notified "Uttar Pradesh Recovery of Damages to Public and Private Property Rules, 2020" with a view to provide for recovery of damages to public and private property during hartal, bundh, riots, public commotion, protests etc. in regard to property and imposition of fine. The said Rules provides for constitution f the claims tribunal to investigate the damages caused and to award compensation related thereto.
(14). Now coming to yet another aspect of the issue, learned counsel for the applicants in order to buttress their contention have drawn attention of the Court to the provisions of Section 67 of the U.P. Revenue Code which speaks about the power to prevent damages, misappropriation and wrongful occupation of Gram Panchayat property:-
(i) Where any property entrusted or deemed to be entrusted under the provisions of this Code to a Gram Panchayat or other local authority is damaged or misappropriated, or where any Gram Panchayat or other authority is entitled to take possession of any land under the provisions of this Code and such land is occupied otherwise than in accordance with the said provisions, the Bhumi Prabandhak Samiti or other authority or the Lekhpal concerned, as the case may be, shall inform the Assistant Collector concerned in the manner prescribed.
(ii) Where from the information received under sub-section (i) or otherwise, the Assistant Collector is satisfied that any property referred to in sub-section (i) has been damaged or misappropriated, or any person is in occupation of any land referred to in that sub-section in contravention of the provisions of this Code, he shall issue notice to the person concerned to show cause why compensation for damage, misappropriation or wrongful occupation not exceeding the amount specified in the notice be not recovered from him and why he should not be evicted from such land.
(iii) If the person to whom a notice has been issued under sub-section (ii) fails to show cause within the time specified in the notice or within such extended time as the Assistant Collector may allow in this behalf, or if the cause shown is found to be insufficient, the Assistant Collector may direct that such person shall be evicted from the land, and may, for that purpose, use or cause to be used such force as may be necessary, and may direct that the amount of compensation for damage or misappropriation of the property or for wrongful occupation as the case may be, be recovered from such person as arrears of land revenue.
(iv) If the Assistant Collector is of opinion that the person showing cause is not guilty of causing the damage or misappropriation or wrongful occupation referred to in the notice under sub-section (ii), he shall discharge the notice.
(v) Any person aggrieved by an order of the Assistant Collector under Sub-section (iii) or Sub-Section (iv), may within thirty days from the date of such order, prefer an appeal to the Collector.
(vi) Notwithstanding anything contained in any other provisions of this Code, and subject to the provisions of this section every order of the Sub-Divisional Officer under this section shall, subject to the provisions of sub-section (5) be final.
(vii) The procedure to be followed in any action taken under this section shall be such as may be prescribed.
Explanation.- For the purposes of this section, the word "land" shall include the trees and building standing thereon."
(15). Further, under Rule 67(1) of U.P. Revenue Code, 2016, it is incumbent upon the Assistant Collector to make an inquiry as he deems proper and obtain further information regarding the following issues :
(a) full description of damage or misappropriation caused or the wrongful occupation made with details of village, plot number, area, boundary, property damaged or misappropriated and market value thereof;
(b) full address along with parentage of the person responsible for such damage, misappropriation or wrongful occupation;
(c) period of wrongful occupation, damage or misappropriation and class of soil of the plots involved;
(d) value of the property damaged or misappropriated calculated at the circle rate fixed by the Collector and the amount sought to be recovered as damages."
(16). Thus, from the above it is clear that as per the U.P. Revenue Code, it is the Assistant Collector of the area who is the authority concerned to act a pivotal role in demarcation and holding and declaring the land in dispute is encroached by the applicants. The Investigating Officer of criminal cases is not even remotedly connected to conduct this exercise. The entire procedure has been laid down in Section 67(2) that only after getting a reply from the alleged encroacher, the Assistant Commissioner/Sub Divisional Officer has to pass an order giving reasons for not exceeding the explanation, if so offered by the person concerned. The eviction from the land in dispute can only be recorded after disposal of the explanation offered by the person concerned keeping in line with the cardinal principle of natural justice by passing a well reasoned and speaking order while disposing of the said explanation. The Act is itself contained the amount of compensation of 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. Section 210 of the Revenue Code, 2006 confers supervisory power on the Board or the Commissioner to call for the record of any proceeding decided by the subordinate revenue court in which no appeal lies for the purpose of satisfying itself or himself as to the legality or propriety of any order passed in such suit or proceeding.
(17). A careful reading of the provisions of the Revenue Code, 2006, thus, makes it clear that the proceeding for causing damage to the public property can be undertaken against any person who is in wrongful occupation of the same or causes damage or misappropriations to the said property. The nature of eviction proceeding under Section 67 of the Revenue Code, 2006, is, however, summary in nature. The rights of the parties claimed, if gives rise to a dispute requiring adjudication on the questions of fact, a suit for declaration has to be instituted against such person. The Gram Sabha may institute a suit under Section 145 of the U.P. Revenue Code, 2006 for declaration of its right or to seek any further relief. In case of institution of such a suit, a temporary injunction may be granted by the Court concerned to prevent wastage, damage or alienation of the suit property. The Revenue Code, 2006 is a Special enactment providing for the law relating to the 'land' defined under Section 4(14) of the Code.
(18). 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.
LEGALITY OF CRYPTIC/SUMMONING ORDER ON A PRINTED PROFORMA :
(19). In addition to above, learned counsel for the applicants have drawn attention of the Court to the impugned summoning order whereby the concerned Magistrate, despite of the repeated directions of the Hon'ble Apex Court as well as of this Court, have adhered to the old fashion by taking the cognizance of offences on a printed proforma. Needless to mention here that on the previous occasion at least a dozen of the cases of different Benches of this Court in different proceedings have condemned and deprecated this practice of taking cognizance on a printed proforma, but it seems that the concerned Magistrates repeatedly in utter defiance of the directions of this Court are still taking cognizance on a printed praforma without applying their judicial mind. This is wholly unacceptable and condemned in strong term. The Session Judges of respective sessions divisions are required to look into the matter and issue an specific order that the cognizance order must be speaking and showing application of judicial mind.
(20). It was noted by Hon'ble Apex Court in the case of Abdul Rashid vs. State of U.P., 2010 SCC online Alld 2819, wherein it has been held that the judicial order cannot be allowed to be passed in a mechanical fashion either by filling in the blanks in a printed proforma or by affixing a readymade seal etc. of the order on a plain paper. Such tendency must be deprecated and cannot be allowed to perpetuate. This reflects not only lack of judicial mind to the facts of the case but is also against the settled judicial norms.
(21). Similarly in the case of Bhushan Kumar vs. State (NCT of Delhi), 2012 5 SCC 424, wherein the Hon'ble Apex Court has observed that Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. While explaining the true import of expression "sufficient ground for proceeding" the Hon'ble Apex Court in the case of Sunil Bharti Mittal vs. Central Bureau of Investigation, AIR 2015 sc 923 has held as under :
"47. However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be swtated in the order itself...."
(22). As mentioned above, taking into account the gravity of offence and its nature in which there is no criminality as such and the apt remedy would be to proceed against the erring so called encroacher u/s 67 of the U.P. Revenue Code and get the land in dispute demarcated. It is the case exclusively falls within the domain of concerned revenue authority to impose the fine, if any, after taking the whole exercise as per the provisions of law contained u/s 67 of the U.P. Revenue Code.
(23). Thus, after having heard the arguments advanced by learned counsel for the applicants and with the help of guidelines and the law laid down by the Hon'ble Apex Court in abovementioned cases and also keeping in view the totality of facts and circumstances of the case, I have got no hesitation to allow these applications u/s 482 Cr.P.C. and quash the impugned summoning/cognizance orders as well as proceedings challenged therein. Accordingly, the impugned summoning/cognizance order dated 27.10.2018 as well as entire criminal proceeding of Case No.1588 of 2018 (State vs. Bhawarpal Singh and others), charge sheet dated 20.6.2016, arising out of Case Crime No.149 of 2016, u/s 3(2)A of Prevention of Damages to Public Property Act, Police Station Tirwa, District Kannauj, pending in the Court of Additional Chief Judicial Magistrate, Kannauj and the summoning/cognizance order dated 04.10.2018 passed by the Civil Judge (S.D.)/Additional Chief Judicial Magistrate, Shamli as well as entire proceeding of Criminal Case No.8511 of 2022 (Sate vs. Sajid and others), arising out of charge sheet No.406 of 2018 dated 03.09.2018 in Case Crime No.0432 of 2018, u/s 3 of the Prevention of Damage to Public Property Act, 1984, Police Station Kairana, District Shamli are hereby QUASHED.
(24). The instant applications u/s 482 Cr.P.C. stand allowed. The matter is remanded back for fresh consideration by the court concerned, after strictly adhering to the observations of this order, within next FOUR MONTHS.
Order Date :- 13.7.2023 M. Kumar