Allahabad High Court
Rakesh vs State Of U.P. And Another on 23 September, 2025
Author: Saurabh Srivastava
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:170973
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 36690 of 2025
Rakesh
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Chandra Jeet Singh, Ran Jeet Singh
Counsel for Opposite Party(s)
:
G.A.
Court No. - 77
HON'BLE SAURABH SRIVASTAVA, J.
1. Heard learned counsel for the parties.
2. By means of the present application, applicant has sought quashing of the entire proceeding of Criminal Case no. 2971 of 2022 (State vs. Rakesh) arising out of Case Crime no. 124 of 2022 under sections 447 IPC and 2/3 Prevention of Damage to Public Property Act, PS- Samthar, District Jhansi including charge sheet dated 21.08.2022 as well as cognizance/summoning order dated 20.12.2022 passed by learned Judicial Magistrate, Moth, District Jhansi.
3. Brief facts of the present case are that a first information report dated 27.07.2022 bearing Case Crime No.124 of 2022 was lodged by Lekhpal/opposite party no.2 in pursuance of Section 447 IPC and 2/3 Prevention of Damage to Public Property Act against applicant alleging that applicant has encroached illegally over some part of Gata No.433/1678 which is Navin Parti land. The applicant had, thus, caused damage and loss to the public property which is the land vested in Gram Sabha. After lodging of the FIR, the concerned Investigating Officer started inquiry and after conclusion of the same, preferred charge-sheet on dated 21.08.2022 against applicant under Section 447 IPC and 2/3 Prevention of Damage to Public Property Act, 1984, whereupon learned court concerned has taken cognizance/summoning of offence vide order dated 20.12.2022 which impugned the present petition.
4. Learned counsel for applicant has challenged the chargesheet as well as cognizance/summoning order on several other ground inter-alia precisely on the ground that lodging of the first information report and submitting charge-sheet taking aid of provisions of the P.D.P.P. Act, 1984 is nothing but an abuse of process of the law, inasmuch as, the said provisions cannot be invoked to lodge a criminal case on the allegations of damage or loss caused to the Gram Sabha land. The Magistrate has acted illegally and without application of judicial mind in taking cognizance on the charge sheet submitted under Section 447 IPC and 2/3 of the P.D.P.P. Act, 1984. It is also submitted that as implication of the applicant under Section 447 IPC is dependent upon mandatory notice under Section 441 IPC as per the State Amendment, but there is hardly any case that the notice has ever been issued before lodging FIR against the applicant.Further it is also submitted that applicant is owner of plot no. 433 area 0.8140 and his name has been recorded in the revenue records and plot no. 433/1678 area 0.1380 has been recorded as Naveen Parti in the revenue record and at present said land is vacant in which there is no encroachment made by the applicant.
5. In any case, the question as to whether applicant had illegally encroached upon the land vested in Gram Sabha, can only be adjudicated by the Revenue Authorities. The proper proceeding for eviction of the unauthorized occupant can be undertaken under Section 67 of the Revenue Code, 2006. The short-cut procedure adopted by the Lekhpal of the village concerned is nothing but with a view to harass the applicant.
6. Per contra, learned AGA vehemently opposed the prayer sought through the instant petition but could not dispute the aforesaid arguments raised by learned counsel for applicant.
7. While dealing with similar issue, co-ordinate Bench of this Court vide order 6.8.2020 passed in Application u/s 482 no. 9964 of 2020 (Munshi Lal and Another vs. State of U.P. and another), quashed the entire proceeding u/s 2/3 of Prevention of Damage to Public Property Act, 1984 and held that 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. 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.
8. 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 IPC 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.
9. From perusal of the records, it transpires that present case is squarely covered with the judgment of co-ordinate Bench of this Court passed in Munshi Lal (supra) and as such the criminal proceedings initiated against the applicant pursuant to Section 447 IPC and section 2/3 of Prevention of Damage to Public Property Act, 1984, cannot but be said to be an abuse of the process of law or the Court. The cognizance/summoning order dated 20.12.2022 has been passed in complete ignorance of law. The continuation of criminal proceedings, in the considered opinion of the Court, being an abuse of process of the Court, ends of the justice requires that the said proceedings be quashed.
10. Invoking inherent powers under Section 528 BNSS of the High Court, entire proceedings of the Case Crime no. 124 of 2022 under sections 447 IPC and 2/3 Prevention of Damage to Public Property Act, PS- Samthar, District Jhansi, is hereby quashed only in respect of applicant herein.
11. The instant application stands allowed.
12. However, this order will not preclude the authorities concerned to initiate fresh proceeding against applicant in accordance with Section 67 of U.P.Revenue Code, 2006, if required.
(Saurabh Srivastava,J.) September 23, 2025 Shaswat