Allahabad High Court
Mohammad Waseem vs State Of U.P. Thru.Prin.Secy. Home And ... on 11 March, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:21131 AFR Court No. - 27 Case :- APPLICATION U/S 482 No. - 2042 of 2024 Applicant :- Mohammad Waseem Opposite Party :- State Of U.P. Thru.Prin.Secy. Home And Another Counsel for Applicant :- Amar Singh Counsel for Opposite Party :- G.A. Hon'ble Subhash Vidyarthi,J.
1. Heard Sri Amar Singh, learned counsel appearing for the applicant and Sri Anurag Verma, learned Additional Government Advocate and perused the record.
2. By means of the instant application filed under Section 482 Cr.P.C., the applicant has sought quashing of the proceedings of Criminal Case No.22848 of 2023: State vs Aqeel Ahmad & Ors arising out of Charge-sheet No.176 of 2022 dated 22.05.2022 in pursuance of Case Crime No.46 of 2022, under Section 2/3 Prevention of Damages to Public Property Act, Police Station Shivgarh, Raebareli.
3. Opposite party No.2- Lekhpal has lodged FIR No.46 of 2022 on 02.02.2022 against three named persons, Aqeel Ahmad Khan @ Beeka, Arshad and Sherehind Infracon Pvt Ltd., of which the applicant is a proprietor stating that upon demarcation of certain land, including the land of chakroad and nali, it was found that the accused Aqeel Ahmad Khan @ Beeka had entered into possession of the land. The applicant's firm Sherehind Infracon Pvt Ltd., is carving out plots of the land of which Bika has taken possession.
4. During investigation, statement of the Lekhpal has been recorded, who has supported the FIR allegations.
5. The learned counsel for the applicant states that the allegations leveled are false and the applicant has not taken into possession the land of chakrod and nali. This is a factual contention, which cannot be gone into by this Court while deciding the application under Section 482 Cr.P.C.
6. The learned counsel for the applicant has next submitted that the no proceedings under Section 67 of the U.P. Revenue Code have been initiated against the applicant.
7. The learned counsel for the applicant has placed reliance a decision of coordinate bench of this Court in the case of Munshi Lal & Anr vs State of U.P. & Anr : Application u/s 482 No.9964 of 2020 decided on 06.08.2020 wherein it was held that Prevention of Damage to Public Property Act, 1984 is confined to restriction and damage of public property during the course of riots or public demonstrations only. Relying the aforesaid decision another coordinate Bench of this Court vide order dated 09.01.2024 stayed proceedings of criminal case in respect of the co-accused Aqueel Ahmad @ Beeka vs State of U.P.: Application u/s 482 No.121 of 2024.
8. Per contra, the learned A.G.A.-I has submitted that the decision in Munshi Lal (supra) is no longer hold good law, as in a subsequent decision in the case of Devnath Yadav vs State of U.P. & Ors : Criminal Misc Writ Petition No.1131 of 2021 decided on 03.03.2021, a Division Bench of this Court held that "Upon a careful perusal of the Prevention of Damage to Public Property Act, 1984, we find that Section 2(a) of the Act provides that the word "mischief" occurring in the Act shall have the same meaning as in Section 425 of the Indian Penal Code, which is quoted below -
"Section 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, 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".
Admittedly, the land in question is public utility land having been reserved during consolidation operations for use as pasture land for grazing cattle. Any encroachment thereon, as is admitted by the petitioner, means that the same cannot be used as pasture land. As such the situation of the property has been changed by the petitioner by construction of a boundary wall. Such construction prevents the use of the land encroached upon as pasture land and has diminished its value or utility. The act of the petitioner is therefore, covered by Section 425 of the Indian Penal Code.Therefore, there is no doubt that the encroachment by the petitioner over public utility land, reserved as pasture land, amounts to a mischief within the meaning of the term under Section 425 IPC.
Section 3(1) of the Prevention of Damage to Public Property Act, 1984 provides that who ever commits mischief in respect of any public property shall be punished with imprisonment for a term upto five years with fine.
Land reserved for its use as pasture land is land reserved for a public purpose. It is, therefore, public utility land. It is also land covered by Section 67 of the Revenue Code, 2006 wherein no right can accrue in favour of any person. It is also not disputed that the land in question has been reserved for a public purposes, namely, for its use as pasture land.
It is no doubt true that Section 67 of the Revenue Code, 2006 provides a complete procedure for eviction of unauthorized occupants of Gaon Sabha land, which may or may not be public utility land. The said provision is only for eviction and for recovery of damages on account of such unauthorized occupation and user of land belonging to the State under the management of the Gaon Sabha. It is a purely civil remedy with no criminality, attached. The same encroachment, of public utility land, under the Prevention of Damage to Public Property Act, is a criminal offence, visited by penal consequences, namely, imprisonment and fine. Besides, no order for eviction of an unauthorized occupant can be passed under the Prevention of Damage to Public Property Act. Therefore, in our considered opinion, the two provisions, namely, 67 of the Revenue Code and Sections 2,3 and 5 of the Prevention of Damage to Public Property Act operate in different fields. In case the legislature in its wisdom, considered it fit to declare any action to be also a criminal act, the same, does not require to be read down or its scope to be narrowed down. Since, the two provisions operate in different spheres, it cannot be accepted that there is any overlap. There is no bar for the institution and prosecution of Civil and Criminal proceedings regarding an act, if both have the mandate of law. In any case, an act can given rise to both criminal and civil liability and therefore, both civil and criminal proceedings can be resorted to simultaneously."
9. Therefore, aforesaid submission of the learned counsel for the applicant on the decision of Munshi Lal (supra), has no force and the same is rejected.
10. Regarding Munshi Lal (supra) relied upon by the learned counsel for the applicant, the Division Bench in Devnath Yadav (supra) dealt with the same in following words:-
"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."
11. Learned A.G.A.-I has placed reliance on a decision rendered by a coordinate Bench of this Court in Ramnarayan Pandey vs State of U.P.: 2023 (125) ACC 224 wherein it was held that "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."
12. So far as the submission of the learned counsel for the applicant that a co-accused has been granted interim relief by means of an order dated 09.01.2024 passed in Application u/s 482 Cr.P.C. No.9964 of 2020 is concerned, suffice it to say that merely because a coordinate Bench has granted interim order to an accused person relying on a judgment which does not hold good law, this Court cannot persuade from examination of the merit of the application and decide the application and when I examine the facts of the case in law and the law laid down in the aforesaid case, it appears that the Lekhpal has alleged in the FIR that co-accused Aqueel Ahmad @ Beeka has taken into possession of the government land meant to be used as chakroad and nali and the applicant is carving out residential plots on the land including the Government land.
13. In these circumstances, a case for prosecution of the application under Sections 2/3 of the Prevention of Damage to Public Property Act, 1984 is made out. The application lacks merit and is hereby dismissed.
(Subhash Vidyarthi, J.) Order Date :- 11.3.2024 prateek