Allahabad High Court
Srikant vs State Of U.P. on 23 September, 2021
Author: Y.K. Srivastava
Bench: Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 84 Case :- APPLICATION U/S 482 No. - 14192 of 2021 Applicant :- Srikant Opposite Party :- State of U.P. Counsel for Applicant :- Muktesh Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri Muktesh Kumar Singh, learned counsel for the applicant and Sri Vinod Kant, learned Additional Advocate General alongwith Sri Pankaj Saxena, learned Additional Government Advocate-I and Ms. Akansha Gaur, learned State Law Officer for the State opposite party.
2. The present application under Section 482 of the Code of Criminal Procedure, 19731 has been filed seeking to quash the charge sheet dated 14.05.2015 as well as the cognizance order dated 06.04.2016 and also the entire proceedings of Case No.210 of 2016 (State vs. Srikant and Others), arising out of Case Crime No.149 of 2015, under Section 3/4 of the Prevention of Damage to Public Property Act, 18942, Police Station Jigna, District Mirzapur pending before the 4th Additional Civil Judge (Junior Division), Mirzapur.
3. The records of the case indicate that the criminal proceedings were initiated pursuant to an FIR dated 26.03.2015 lodged against the applicant, which was registered as Case Crime No.149 of 2015, under Section 3/4 of the PDPP Act, Police Station Jigna, District Mirzapur. The case was investigated and a charge sheet dated 14.05.2015 was placed whereupon cognizance was taken by the Magistrate on 06.04.2016 and the case was registered as Criminal Case No.210 of 2016.
4. The principal ground, which has been sought to be urged to seek quashment of the proceedings, is that the allegation in the FIR being in regard to the encroachment over Gram Sabha land, the provisions of the PDPP Act could not have been invoked to initiate criminal proceedings. It is also submitted that the Uttar Pradesh Revenue Code, 20063 provides complete procedure for eviction of an unauthorized occupation from Gram Sabha land and in view of the same, criminal proceedings which have been initiated, are an abuse of process of court and are liable to be quashed. In support of his submission learned counsel has placed reliance upon the judgment in the case of Munshi Lal and Another Vs. State of U.P. and Another4.
5. Controverting the aforesaid submissions, learned Additional Advocate General submitted that the proceedings for eviction of unauthorized occupation, as provided under Section 67 of the Revenue Code, are of a summary nature and there is no bar in initiating of criminal proceedings under the PDPP Act in case of damage to public property which would include within its purview Gram Sabha property also. It is submitted that the scope of criminal proceedings and the proceedings for eviction under the Revenue Code are entirely different and there is no bar in the same being simultaneously proceeded with.
6. Based on the rival contentions the question which falls for consideration is as to whether in respect of allegations relating to damage to Gram Sabha properties, only proceedings for eviction under Section 67 of the Revenue Code can be initiated, or criminal proceedings under the provisions of the PDPP Act can also be proceeded with.
7. The PDPP Act (3 of 1984) was enacted to provide for prevention of damage to public properties and the matters connected therewith. For ease of reference the aforesaid Act i.e. The Prevention of Damage to Public Property Act, 1984 (3 of 1984) is being reproduced in its entirety:-
"1. Short title, extent and commencement.-- (1) This Act maybe called the Prevention of Damage to Public Property Act, 1984.
(2) It extends to the whole of India.
(3) It shall be deemed to have come into force on the 28th day of January, 1984.
2. Definitions.--In this Act, unless the context otherwise requires,--
(a) "mischief" shall have the same meaning as in section 425 of the Indian Penal Code (45 of 1860);
(b) "public property" means any property, whether immovable or movable (including any machinery) which is owned by, or in the possession of, or under the control of--
(i) the Central Government; or
(ii) any State Government; or
(iii) any local authority; or
(iv) any corporation established by, or under, a Central, Provincial or State Act; or
(v) any company as defined in section 617 of the Companies Act, 1956 (1 of 1956); or
(vi) any institution, concern or undertaking which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided that the Central Government shall not specify any institution, concern or undertaking under this sub-clause unless such institution, concern or undertaking is financed wholly or substantially by funds provided directly or indirectly by the Central Government or by one or more State Governments, or partly by the Central Government and partly by one or more State Governments.
3. Mischief causing damage to public property. (1) Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in sub-section (2), shall be punished with imprisonment for a term which may extend to five years and with fine.
(2) Whoever commits mischief by doing any act in respect of any public property being--
(a) any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy;
(b) any oil installations;
(c) any sewage works;
(d) any mine or factory;
(e) any means of public transportation or of tele-communications, or any building, installation or other property used in connection therewith, shall be punished with rigorous imprisonment for a term which shall not be less than six months, but which may extend to five years and with fine:
Provided that the court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months.
4. Mischief causing damage to public property by fire or explosive substance.-- Whoever commits an offence under sub-section (1) or sub-section (2) of section 3 by fire or explosive substance shall be punished with rigorousimprisonment for a term which shall not be less than one year, but which may extend to ten years and with fine:
Provided that the court may, for special reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than one year.
5. Special provisions regarding bail. --No person accused or convicted of an offence punishable under section 3 or section 4 shall, if in custody, be released on bail or on his own bond unless the prosecution has been given an opportunity to oppose the application for such release.
6. Saving. The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force, and nothing contained in this Act shall exempt any person from any proceeding (whether by way of investigation or otherwise) which might apart from this Act, be instituted or taken against him.
7. Repeal and saving.-- (1) The Prevention of Damage to Public Property Ordinance, 1984 (Ord. 3 of 1984), is hereby repealed.
Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act."
8. Section 3 of the PDPP Act provides for imposition of punishment with imprisonment for a term which may extend to five years and with fine, in respect of mischief causing damage to public property.
9. The word "mischief" has been defined under Section 2 (a) as having the same meaning as in the Section 425 of the Indian Penal Code, 18605. For ready reference Section 425 of the Penal Code is being extracted below:-
"425. Mischief.-- Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, cause the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief"."
10. The expression "public property" has been defined under Section 2(b) to mean any property, whether immovable or movable (including any machinery) which is owned by, or in the possession of, or under the control of--
(i) the Central Government; or
(ii) any State Government; or
(iii) any local authority; or
(iv) any corporation established by, or under, a Central, Provincial or State Act; or
(v) any company as defined in Section 617 of the Companies Act, 1956 (1 of 1956); or
(vi) any institution, concern or undertaking which the Central Government may, by notification in the Official Gazette, specify in this behalf:
11. The expression "public property", as defined under Section 2(b) of the PDPP Act, would therefore include within its ambit any property, movable or immovable, owned by or in possession or under the control of any local authority, which would include a Gram Sabha. The Gram Sabha land would therefore be covered within the definition of the expression "public property" under the Act 3 of 1984.
12. The term "mischief" has been defined under Section 2(a) of the Act 3 of 1984 as having the same meaning as defined under Section 425 of the Penal Code. For ready reference, the term "mischief" as defined under Section 425 of the Penal Code, is as under:-
425. Mischief.-- Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, cause the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief"."
13. A conjoint reading of the aforesaid provisions would go to show that the Gram Sabha property would be covered within the meaning of the term "public property" and any damage to the same would be within the ambit of the expression "mischief causing damage to public property" which would constitute a punishable offence under Section 3 of the PDPP Act.
14. The Revenue Code is an Act to consolidate and amend the law relating to land tenures and land revenue in the State of Uttar Pradesh, and to provide for matters connected therewith and incidental thereto.
15. Section 67 of the Revenue Code which corresponds to Section 122B of the U.P. Zamindari Abolition & Land Reforms Act, 1950 (now repealed), provides the power to prevent damage, misappropriation and wrongful occupation of Gram Panchayat property. Section 67 of the Revenue Code, reads as follows:
"67. Power to prevent damage, misappropriation and wrongful occupation of Gram Panchayat property.--(1) 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.
(2) Where from the information received under sub-section (1) or otherwise, the Assistant Collector is satisfied that any property referred to in sub-section (1) 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.
(3) If the person to whom a notice has been issued under sub-section (2) 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.
(4) 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 (2), he shall discharge the notice.
(5) Any person aggrieved by an order of the Assistant Collector under Sub-section (3) or Sub-Section (4), may within thirty days from the date of such order, prefer an appeal to the Collector.
(6) 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.
(7) 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."
16. The procedure to be followed in respect of any action to be taken under the aforesaid section is described under Rules 66 and 67 of the Uttar Pradesh Revenue Code Rules, 20166. Rules 66 and 67 read as follows:-
"R.66. Information to Assistant Collector (Section 67).-- The information to Assistant Collector required by Section 67(1) shall be submitted by the Chairman or any member or the Secretary of the Land Management Committee, or any officer of the Local Authority concerned in R.C. Form-19.
R.67. Further inquiry by Assistant Collector (Section 67).-- (1) On receipt of the information under Rule 66, or on facts otherwise coming to his knowledge, the Assistant Collector may make such inquiry as he deems proper and may obtain further information regarding the following points --
(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.
(2) The Assistant Collector shall thereafter proceed to take action under section 67(2) and for that purpose issue a notice to the person concerned in R.C. Form-20 to show cause as to 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.
(3) If the notice referred to in section 67(2) remains uncomplied with or if the cause shown by the person concerned is found to be insufficient, the Assistant Collector may direct by order that --
(a) such person be evicted by using such force as may be necessary; or
(b) the amount of compensation for damage or wrongful occupation ordered by the Assistant Collector, if not paid in specified time, may be recovered as arrears of land revenue, including the amount of expenses referred to in sub-rule (3).
(4) The amount of damages sought to be recovered and the expenses of execution of the order shall be specified in such notice, which shall be determined in the following manner:-
(a) In the case of damage or misappropriation, the amount of damages shall be assessed at the prevailing market rate.
(b) In the case of unauthorized occupation of any land, the amount of damages shall be the amount equal to the five percent of the market value of the land calculated at the circle rate fixed by the Collector for each year of unauthorized occupation.
(c) The expenses of execution of the order shall be assessed on the basis of one day's pay and allowances payable to the staff deputed.
(5) If the person wrongfully occupying the land has done cultivation therein, he may be allowed to retain possession thereof until he has harvested the crops subject to the payment by him of the amount equal to the five percent of the market value of the land calculated as per the circle rate which shall be credited to the Consolidated Gaon Fund or the Fund of the local authority other than the Gram Panchayat as the case may be. If the person concerned does not make the payment of the aforesaid amount within the period specified in the notice in R.C. Form-20, the possession of the land shall be delivered to the Land Management Committee or the local authority, as the case may be, together with the crop:
Provided that where such person again wrongfully occupies the same land or any other land within the jurisdiction of the Gram Panchayat or the local authority as the case may be, he shall be evicted therefrom forthwith and possession of the land vacant or together with the crop thereon shall be delivered to the Land Management Committee or the local authority as the case may be.
(6) The Assistant Collector shall make an endeavour to conclude the proceeding under section 67 of the Code within the period of ninety days from the date of issuance of the show cause notice and if the proceeding is not concluded within such period the reasons for the same shall be recorded.
(7) Nothing in sub-rule (5) shall debar the Land Management Committee or the local authority as the case may be from prosecuting the person who encroaches upon the same land second time in spite of having been evicted under the Code or the rules, under section 447 of the Indian Penal Code, 1860.
(8) There shall be maintained in the office of each Collector a register in R.C. Form-21 showing details of the amount ordered to be realized on account of damages and compensation awarded in proceedings under section 67.
(9) A similar register shall also be maintained by each tahsildar showing realization of damages and compensation awarded in such proceeding. The entries made in the register maintained at tahsil shall be compared with the register maintained by the Collector to ensure accuracy of the entries made therein.
(10) A progress report showing realization of damages and compensation awarded in proceedings under section 67 shall be sent to Board of Revenue, U.P., Lucknow by the fifteenth day of April and October every year. The Board after consolidating the report so received from the districts shall send it to the Government.
(11) Nothing in Rules 66 and 67 shall debar any person from establishment of his right, title or interest in a court of competent jurisdiction in accordance with the law for the time being in force in respect of any matter for which any order has been made under Section 67 of the Code."
17. The provisions contained under Section 67 of the Revenue Code and the Rules 66 and 67 of the Rules, 2016, provide a summary procedure for proceeding in respect of damage, misappropriation and wrongful occupation of Gram Panchayat properties and includes the powers to prevent such damage, misappropriation or wrongful occupation. The procedure prescribed includes giving information to the Assistant Collector, whereupon inquiry is to be made and after issuance of notice to the person concerned, a direction for eviction and recovery of compensation for damage or misappropriation of the property or wrongful occupation may be made. The order to be passed in this regard is subject to a statutory appeal, which may be preferred to the Collector.
18. The Revenue Code also contains provisions for institution of regular suits for declaration of rights. Section 145 pertains to declaratory suits by Gram Panchayat and it provides that notwithstanding anything contained in Section 34 of the Specific Relief Act, 1963, the Gram Panchayat may institute a suit against any person claiming to be entitled to any right in any land for the declaration of the right of such person in such land, then the court may, in its discretion, make a declaration of right of such person, and the Gram Panchayat need not in such suit ask for any further relief.
19. The PDPP Act, on the other hand, has been enacted to curb acts of vandalism and damage to public property, and in terms thereof any act of mischief i.e. causing destruction of any property, or any change in any property or in the situation thereof which destroys or diminishes its value or utility, or affects it injuriously, would constitute a punishable offence, as per Section 3 thereof.
20. Section 5 of the PDPP Act contains special provisions regarding bail and it mandates that no person accused or convicted of an offence punishable under Section 3 or Section 4 shall, if in custody, be released on bail or on his own bond unless the prosecution has been given an opportunity to oppose the application for such release.
21. Section 6 is a saving clause and in terms thereof the provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force, and nothing contained in the Act shall exempt any person from any proceeding (whether by way of investigation or otherwise) which might apart from this Act, be instituted or taken against him.
22. The aforestated provisions are indicative of the object and purpose of the PDPP Act, which is an enactment to curb acts of vandalism and damage to public property and to provide punishment in respect thereof.
23. The scope of proceedings under the PDPP Act is, therefore entirely different from that of proceedings of eviction, which might be initiated in respect of wrongful occupation of Gram Panchayat properties under Section 67 of the Revenue Code. The saving clause under Section 6 of the PDPP Act makes it clear that the provisions of the Act are in addition to, and not in derogation of, the provisions of any other law for the time being in force, and that the proceedings under any other enactment may also be instituted or taken without there being any bar in respect of the same.
24. In the instant case, criminal proceedings have been initiated pursuant to lodging of an FIR by the Lekhpal of the village containing allegations that the accused applicant had constructed a house over the Goan Sabha land which is recorded as a pond in the revenue records. As per the FIR version, the land in question bearing Araji No.52, area 1.211 hectares is recorded as a pond and it is stated that despite being repeatedly asked the accused applicant has constructed a house over the pond land thereby causing damage to public property and in view thereof criminal proceedings under Section 3/4 of the PDPP Act were being initiated against him for the said act.
25. Pursuant to FIR the case was investigated and the material collected during the course of investigation supported the FIR allegations and accordingly a charge sheet dated 14.05.2015 was submitted whereupon cognizance was taken by the Magistrate on 06.04.2016 and a criminal case was instituted.
26. The judgment in the case of Munshi Lal and Another (supra), relied upon by learned counsel for the applicant, after noticing the provisions of the PDPP Act, has taken the view that as far as criminal proceedings 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. In so far as the observation made in the decision that the Act covers the specific area relating to 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, is concerned, reference may be had to a recent decision by a Division Bench of this Court in Devnath Yadav vs. State of U.P. and three Others7, which was a case where an FIR under Section 2/3/5 of the PDPP Act, in respect of encroachment over the Gaon Sabha land, had been sought to be challenged. The Division Bench upon considering the legal position held that the judgment in the case of Munshi Lal and Another was distinguishable and made the following observations :-
"Coming to the judgement in the case of Munshi Lal (supra), we find that the learned Single Judge, proceeded on the premise that Prevention of Damage to Public Property Act, 1984 was enacted to curb vandalism and damage to pubic property. The first sentence of its Statement of Objects and Reasons reads as follows-
"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 effectively with cases of damage to public property."
The use of the word "including" has been given a restrictive interpretation in the judgment cited. We are of the opinion that the said word is illustrative rather that bringing also within its ambit, "destruction and damage caused during riots and public commotion" as stated in the Statement of Objects and Reasons. The use of word "including" therefore, cannot be read to mean that the Prevention of Damage to Public Property Act can be invoked only where damage to public property is occasioned by vandalism, riots or public commotion.
In our considered opinion, the learned Single Judge has taken a narrow view of Section 3(1) of the Act and has primarily relied upon Sections 3(2) of the Act as also upon Section 4 of the Act for arriving at the final conclusion, in the judgement cited.
However, we find that in view of Section 425 of IPC and Section 3(1) of the Prevention of Damage to Public Property Act, 1984, the action of the petitioner clearly falls within the purview of these two sections, especially when construction of a boundary wall over public property is clearly admitted by petitioner.
Under the circumstances, therefore, the petitioner is not entitled to any benefit of the judgement in the case of Munshi Lal cited by him, as in the foregoing part of the judgement, we have come to the conclusion that the provision of Section 3(1) of the Prevention of Damage to Public Property Act, 1984 is clearly attracted in the facts and circumstances of the case. Also, the judgement in the case of Munshi Lal is distinguishable on facts."
27. It may be relevant to note that in so far as damage to public or private properties by acts of violence during hartals, bandhs, riots, public commotion and protests, certain observations were made by the Supreme Court in Re: Destruction of Public and Private Properties vs. State of Andhra Pradesh and Others8, and taking a serious note of various instances where there was large scale destruction of public and private properties in the name of agitations, bandhs, hartals and the like and also considering certain suggestions given by the committees appointed by the Court, recommended amendment to the PDPP Act, Criminal Procedure Code, 1973 and other criminal laws, statutes; and also set out guidelines to assess damages to property in the absence of a statutory framework.
28. The aforementioned issues were subsequently taken up in the case of Kodungallur Film Society and Another vs. Union of India and Others9, and taking note of the recommendations/directions in Re: Destruction of Public and Private Properties (supra), certain further recommendations/directions were made.
29. The subject matter relating to acts of violence at public places, to control its persistence and escalation, and to provides for recovery of damage to public or private property during hartals, bands, riots, public commotion and protests in respect of property and constitution of claims tribunals to investigate and determine the damages caused and to award compensation in relation thereto have been provided for under the aforementioned U.P. Act No.11 of 2020.
30. The scope and the subject matter of the PDPP Act is different from the subject matter covered under the Act, 2020, which deals with all acts of violence at public places and to provide for measures to control its persistence and escalation and also provides for recovery of damage by constitution of claims tribunals.
31. The proceedings under the PDPP Act are also distinct from matters which are covered under the Revenue Code, and in particular Section 67 thereof, which provides procedure for eviction and recovery of damages on account of unauthorized occupation and use of land belonging to the State under the management of Gaon Sabha. The procedure provided there-under is summary in nature and is purely a civil remedy with no criminality attached. On the other hand, any act which constitutes a "mischief" within the meaning of Section 2(a) of the PDPP Act, wherein the definition of the word "mischief" has been assigned the same meaning as in Section 425 of Penal Code, and would relate to any act which causes destruction of any property, or any change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, and the property is a "public property" as described under Section 2(b) of the PDPP Act, the same would constitute a criminal offence under Section 3 and would be visited by penal consequences, namely, imprisonment and fine.
32. The provisions under the Revenue Code, the Act, 2020 and the PDPP Act would, therefore be seen to operate in different fields with there being no bar in respect of the institution of proceedings under the aforesaid enactments separately or simultaneously in respect of matters covered thereunder.
33. The criminal proceedings, which have been initiated in the present case pursuant to FIR lodged under the provisions of the PDPP Act, thus cannot be held to be vitiated for the reason that in respect of the allegations relating to encroachment/damage to Gaon Sabha land, only proceedings for eviction and recovery of damages can be initiated under the provisions of the Revenue Code and no criminal proceedings for causing damage or destruction of public property can be initiated under the PDPP Act.
34. No other ground was urged.
35. The application under Section 482 of the Code accordingly stands dismissed.
Order Date :- 23.9.2021 Nitendra/Kirti (Dr. Y.K. Srivastava, J)