Allahabad High Court
Gyan Chandra Shukla vs State Of U.P. And Another on 20 September, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 07.09.2022 Judgment Delivered on 20.09.2022 Court No. - 84 Case :- APPLICATION U/S 482 No. - 8745 of 2022 Applicant :- Gyan Chandra Shukla Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ramesh Kumar Pandey Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
1. Facts and circumstances of present case are example of a ''rushed investigation'. The investigating officer has, without conducting a proper and fair investigation on a complaint filed by complainant/Lekhpal, ''jumped to a conclusion' that there are sufficient evidence that applicant has committed offence under Sections 3 and 5 of Prevention of Damages of Public Property Act, 1984 (hereinafter referred to as "PDPP Act, 1984").
2. The F.I.R. was lodged by Lekhpal on 08.09.2021 at 10.16 AM and investigation was concluded within 24 hours which included spot inspection, recording of statements of complainant, primary witness as well as of investigating officer and charge sheet was submitted on very next date i.e. 09.09.2021.
3. Sri Manu Mishra, holding brief of Sri Ramesh Kumar Pandey, learned counsel for applicant submitted that fair investigation was not conducted as investigating officer has failed to take note that complainant/Lekhpal has submitted an inspection report on 28.08.2021 that alleged encroachment by applicant was removed with a categorical finding that there was no encroachment on link road.
4. Learned counsel further placed reliance upon a judgment passed by coordinate Bench of this court in Munshi Lal and another Vs. State of U.P. and another, 2020 SCC OnLine All 903 : (2020) 6 All LJ 341 : (2020) 113 ACC 455 wherein it was held that "The area which is covered by the P.D.P.P. Act, 1984 is, thus, confined to the destruction or damage to the ''public property' within the meaning of Section 2(b) of the Act during the course of riots or public demonstrations (commotion). The said provisions, in the considered opinion of the Court, cannot be invoked for lodging the criminal complaint or the first information report on the allegations of damage or loss caused to the Gram Sabha land by illegal encroachment against a person permanently residing in the village or a tenure holder of any land in the village in question."
5. Learned counsel lastly submitted that no proceedings were undertaken to remove the alleged encroachment by way of initiating proceedings under clause 67 of U.P. Revenue Code, 2006.
6. The above submissions are opposed by Sri Sunil Srivastava, learned A.G.A. for the State that allegations in first information report are that despite encroachment was removed repeatedly, however, the applicant again encroached the link road by putting material used for purpose of animals. Therefore, the F.I.R. was lodged and only because investigation was conducted within a day itself not deemed to be an unfair investigation ignoring that spot inspection as well as statements of complainant and witness can be recorded in one day.
7. So far as reliance placed on Munshi Lal (supra) is concerned, learned A.G.A. submitted that aforesaid observation was based only on object of PDPP Act, 1984, however, the definition of "mischief" and "public property" in Section 2(a) and (b) respectively as well as contents of Section 3 (Mischief causing damage to public property) as well as Section 4 (Mischief causing damage to public property by fire or explosive substance) which used word "whoever" as well as "public property" means any property of "local authority" also. Therefore, conclusion in Munshi Lal (supra) that destruction or damage to public property would be only during the course of riots or public commotion may not be a correct interpretation.
8. Heard learned counsel for parties and perused the records.
9. In the present case, the investigating officer has acted hastily and jumped to a conclusion that there were evidence against applicant for committing an offence under Sections 3/5 of PDPP Act, 1984. The investigating officer has not taken note of earlier report of complainant/Lekhpal that the encroachment was removed, though, an offence could be made out if applicant has committed offence of encroachment again after removal of obstructions made on link road, however, there must be a consideration of earlier inspection report also. Therefore, it was a case of rushed investigation and as such it is a fit case for exercising inherent powers of this Court for quashing the proceedings.
10. However, the Court is not in agreement with the submission of learned counsel for applicant so far as he has placed reliance on Munshi Lal (supra) wherein the coordinate Bench has proceeded to a conclusion only on the basis of statement of objects and reasons of PDPP Act, 984 which definitely states that the Act was enacted to curb acts of vandalism and damage to public property including destruction and damage caused during riots and public commotion. However, as the said statement of objects and reasons says it is enacted to curb acts of vandalism and damage to public property and to further specify the said vandalism and damage to public property also includes destruction and damage caused during riots and public commotion.
11. The said statement of objects and reasons cannot be construed that the Act was enacted only for the purpose of destruction and damage caused during riots and public commotion as well as coordinate Bench has though observed that public property is defined under Section 2 (b) which includes local authority also but come up with a finding that encroachment on a property of local authority which includes Gram Panchayat shall be dealt with only the provisions of clause 67 of U.P. Revenue Code, 2006. The said finding is also without considering Section 6(7) that "provisions of this Act shall be in addition to and not any derogation of the provisions of any other law with the time being in force". There may be some overlapping for the proceedings undertaken in clause 69 of U.P. Revenue Code, 2006 and under PDPP Act, 1984, however, to say that any encroachment on the land of a local authority which includes Gram Panchayat in no circumstances, the criminal proceedings under the provisions of PDPP Act could not be initiated does not appear to be a correct view.
12. Even definition of mischief which has to be read from Section 425 I.P.C. provides that "Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes 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", cannot be construed that the provisions of PDPP Act of 1984 shall be invoked only when there is destruction of property only due to riots or public demonstration. For example, if a single person committed mischief and caused damage to a public property or by fire and explosive substance, it cannot be construed to be an act committed during riot or public commotion, however, said person can be dealt with PDPP Act, 1984. It is also relevant to note that word used in Section 3 as well as Section 5 of PDPP Act of 1984 are "whoever commit", therefore, even act of one person can be dealt with the provisions of PDPP Act of 1984, if other ingredients are made out.
13. In view of above, there was no illegality that the applicant was dealt with under the provisions of PDPP Act of 1984 and not under clause 67 of U.P. Revenue Code, 2006. However, this Court has interfered with the criminal proceedings only on the ground that it was a case of ''rushed investigation' and that investigating officer has ''jumped to a conclusion' without fair investigation and ignoring relevant material on record.
14. With the above observations, the abovereferred criminal proceedings of Criminal Case No. 522 of 2021 (State vs. Gyan Chandra Shukla and others) arising out of Case Crime No. 210 of 2021 under Sections 3/5 of Prevention of Damages of Public Property Act, 1984, P.S.-Kaundhiyara, District- Prayagraj pending in the Court of A.C.J.M.-Vth, Allahabad are quashed and application is allowed. However, it is made clear that if the applicant repeats his act of encroachment, the concerned authorities are at liberty to proceed under clause 67 of U.P. Revenue Code, 2006 as well as the applicant can be dealt with under the provisions of PDPP Act, 1984 also.
Order Date :- September 20, 2022 Nirmal Sinha [Saurabh Shyam Shamshery, J.]