Allahabad High Court
Bharat Tyagi vs State Of U.P. And Another on 26 February, 2021
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved On 07.01.2021 Delivered On 26.02.2021 In Chamber Case :- APPLICATION U/S 482 No. - 14593 of 2020 Applicant :- Bharat Tyagi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shyam Surat Shukla Counsel for Opposite Party :- G.A.,Anjali Upadhya Hon'ble Anil Kumar-IX,J.
This application under Section 482 Code of Criminal Procedure (here-in-after refered to as 'Cr.P.C.') has been moved by the applicant with a prayer to quash the Charge Sheet dated 02.08.2019 and Cognizance order dated 21.01.2020 as well as entire proceedings of the Criminal Case No. 240 of 2020 (State Vs. Bharat Tyagi and others) arising out of Case Crime No. 375 of 2019, under Sections 288, 420 of Indian Penal Code (here-in-after referred to as 'I.P.C.') & under Section 3 Prevention of Damages to Public Property Act, 1984, (here-in-after referred to as 'PDPP' Act) Police Station- Bisrakh, District- Gautam Buddh Nagar pending in the court of Additional Chief Judicial Magistrate-III, Gautam Budh Nagar.
2. Heard learned counsel for applicant, Ms. Anjali Upadhya Advocate on behalf of Opposite Party No. 2 and Learned Additional Government Advocate on behalf of State of Uttar Pradesh.
3. Brief facts of the case is that Opposite Party No. 2 lodged First Information Report (here-in-after referred to as 'F.I.R.') dated 03.04.2019 as Case Crime No. 375 of 2019 under Sections 288 & 420 I.P.C. and under Section 3 of PDPP Act, Police Station- Bisrakh, District- Gautam Buddh Nagar against the applicant and other co-accused persons alleging therein that applicants and other co-accused raised multistorey buildings within the limit of Noida Industrial Development Authority over Khasra No. 296 & 299 of village Shahberi without prior permisson of Grater Noida Authority. It has also been alleged that authority concerned directed them not to raise illegal construction in the area of Noida Industrial Development Authority but they do not stop it. After investigation charge sheet has been submitted against the applicant and others under Sections 288 & 420 I.P.C. and Section 3/4 PDPP Act, cognizance has been taken by A.C.J.M. 3rd G.B. Nagar vide order dated 21.01.2020.
4. Learned counsel for applicant submitted that notification under Section 4 of the Land Acquisition Act (Old Act) was issued on 29.06.2013 which was publish in newspaper on 21.08.2013 and notification under Section 6 of the Land Acquisition Act was issued on 09.09.2014 which was published in newspaper on 25.09.2014. Against the above notification Writ Petition No. 57208/2014 was filed by the applicant along with other co-owners of the land in this Court and it was directed by the Court to maintain status quo. A contempt petition has also been filed by Noida Industrial Development Authority against the land owners which is still pending. Applicant is not a builder, he has not constructed any multi-storied building. He has constructed a single storey and boundary for residing purposes on his bhumidhari land over part of the Khasra No. 299 situated at village Shahberi. He is the owner of the Plot No. 299 over which construction was raised. He has not damaged any public property and no offence under Section 3 of the PDPP Act is made out against him. He has raised construction on his own land and only for residential purposes the construction raised by him is not for sale or allotment for any other person therefore applicant has not cheated any person and no offence of cheating has been made out against him. He has not committed any negligence in constructing his own residential building therefore no offence under Section 288 I.P.C. is made out against him. No criminal offence as alleged in F.I.R. by the authority is sustainable in eye of law thus charge sheet submitted by police and cognizance taken by learned Magistrate is liable to be quashed. It is further submitted that criminal proceedings initiated against the applicant and cognizance taken by the Magistrate is abuse of the process of law.
5. Learned A.G.A. has opposed the prayer and contended that applicant has raised construction without taking permission of the concerned authority in unauthorized way which is unsecured for the public. Investigating Officer has collected evidence showing complicity of the applicant and commission of the crime and accordingly charge sheet has been submitted against him. Learned court below after appreciating the evidence collected during investigation has taken cognizance of the offence and as such now the applicant has a right to file a discharge application before the court below at the time of framing of the charges. Learned A.G.A. has filed counter affidavit on behalf of the Investigating Officer.
6. Learned counsel for opposite party no. 2 has also vehemently opposed the prayer made by the applicant and has filed a detailed counter affidavit. Learned counsel for opposite party no. 2 contended that Government of U.P. has notified the vilage Shahberi hence it is the notified areas of Greater Noida Industrial Development Authority and since then no one can raise any kind of construction without permission of the authority as per Section 9 of the Industrial Area Development Act 1976. It is further contended that the applicant is owner of plot no. 299 and after the notification of 4 & 6 of Land Acquisition Act was issued he has constructed the building without permission of the authority. Construction raised by the applicant is unauthorized and it has also been submitted that during the investigation sufficient evidence has been collected by the Investigating Officer and charge sheet has been filed against the applicant and the learned Magistrate after applying judicial mind as rightly taken the cognizance of the case. At this stage it cannot be said that no offence is made out against the applicant.
7. I have considered the rival submission of the parties and perused the material available on record.
8. Charge sheet against the applicant has been submitted under Sections 288, 420 I.P.C. and Section 3 PDPP Act and cognizance has been taken by the court concerned on 21.01.2020 for the aforesaid offences.
9. Learned counsel for applicant submitted that he has constructed the single storey building with boundary wall on a portion of his land Khasra No. 299 for residing purpose therefore none of the offences levelled against him is made out. Now without going into the disputed fact of the case, it has to be seen that whether any offence is levelled against the applicant is disclosed or not.
10. Section 288 I.P.C. provides as follows:-
"288. Negligent conduct with respect to pulling down or repairing buildings. -Whoever, in pulling down or repairing any building, knowingly or negligently omits to take such order with that building as is sufficient to guard against any probable danger to human life from the fall of that building, or of any part thereof, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
As provided in Section 288 I.P.C. the offence under Section 288 has following essential ingredients:-
(i) that the accused was pulling down or repairing any building;
(ii) that during such pulling or repairing he omitted to take such order with the building as is sufficient to guard against any probable danger to human life from the fall of that building or part thereof;
(iii) that the accused omitted to take such order, knowingly or negligently In this case there is no case that the applicant was pulling down or repairing his building. The allegation is that the applicant has constructed his house that too a single storey and boundary wall. The language used in the section makes it amply clear that this provision is limited to the acts of pulling down or repairing any building therefore provision of Section 288 I.P.C. are not satisfied here. Therefore as per allegation against the applicant no case under Section 288 I.P.C. is made out against him.
11. Now it has to be seen whether from the allegation against applicant offence under Section 420 I.P.C. is disclosed or not.
Section 420 I.P.C. provides as follows:-
"420. Cheating and dishonestly inducing delivery of property. - Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
From the perusal of the Section 420 I.P.C., for an offence under this section there are following indredients:-
(i) The accused must have deceived someone;
(ii) By above deception he must induce a person
(a) to deliver any property;
(b) to make, alter or destroy the whole or any part of the valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security.
(iii) That the accused did so dishonestly.
In case in hand there is no case that applicant has deceived any person. It is not a case that the applicant has induced any person for whatsoever. It is not disputed that the applicant has raised single storey building and boundary wall. It has not been said that applicant is a builder and has raised the construction for selling it or business purpose. Therefore no offence under Section 420 I.P.C. is made out against the applicant.
12. Last offence levelled against the applcant is that of Section 3 PDPP Act which provides that-
"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 porperty 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."
Public property has been defined in Section 2(b) of the PDPP Act which provides as under:-
Section 2(b) PDPP Act:- "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."
In instant case the property is neither owned by the Government nor it is in possession of the authority rather it is Bhumidhari of the applicant but the government of U.P. has notified the village vide notification dated 21.02.1994 hence it is the notified area of Greater Noida Industrial Development Authority. In exercise of powers under sub-section (2) of Section 9 and Section 19 of Uttar Pradesh Industrial Area Development Act 1976, the Greater Noida Industrial Development Authority has made regulation as " The Greater Noida Industrial Development Area Building Regulation 2010" with the prior approval of the State Government to regulate the erection of building within Greater Noida Industrial Area. The State Government has issued notification under Sections 4 and 6 of the Land Acquisition Act 1894 and both the notifications have been published. The land owners have challenged the above notifications and filed Writ Petition No. 57208/2014 before this Court in which parties are directed to maintain status quo. Thus after the village being notified by the Government of U.P. and the Noida Authority after approval of Government has made regulations in exercise of power under sub-section (2) of Section 9 and 19 of the Uttar Pradesh Industrial Area Development Act 1976 and after publication of notification issued under Sections 4 & 6 of the Land Acquisition Act the land is under control of the authority subject to the orders and judgment of the court in pending writ petition and it comes under perview of Section 2(b)(iii) of PDPP Act subject to the orders and judgment of the court is pending petition regarding this land and any act of the applicant of change in the property so as to diminish its value or utility comes under the definition of Mischief as is provided 2(a) of the PDPP Act.
In view of above, it cannot be said that offence under Section 3 PDPP Act is not made out against the applicant.
13. In view of the fact of this case and aforesaid discussion, this Court is of the view that the uncontroverted allegations made in the F.I.R. and the evidence collected in support of the same do not disclose the commission of offence under Sections 288 & 420 I.P.C. against the applicant but at this stage it cannot be said that no offence under Section 3 PDPP Act is disclosed against the applicant.
As regards cognizance and charge sheet only for offence under Sections 288 & 420 I.P.C. against the applicant are concerned, the present case clearly falls in category (iii) of para 102 of the observations made by the Hon'ble Apex Court in State of Haryana Vs. Bhajan Lal 1992 SCC (Cr.) 426.
14. In view of the above the charge sheet dated 02.08.2019 and cognizance order dated 21.01.2020 as well as further proceedings of Criminal Case no. 240 of 2020 (State Vs. Bharat Tyagi and others) arising out of Case Crime No. 375/2019 against the applicant, so far as sections 288 and 420 I.P.C. only are concerned, is hereby quashed.
15. It is made clear that so far as charge sheet dated 02.08.2019, cognizance order dated 21.01.2020 as well as further proceedings only for Section 3 PDPP Act are concerned, that has not been interfered by this court and concerned court below is at liberty to proceed in accordance with law against the applicant without prejudice from any observation made by this court in this regard.
16. Accordingly, the instant application under Section 482 Cr.P.C. is partly allowed.
Order Date :- 26.02.2021 [Anil Kumar-IX, J.]
Sharad/-