# Akhilesh Kumar Sachan & Ors v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 603
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-09
- **Case number:** Application U/S 482. No. 4282 of 2024
- **Bench:** Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhilesh-kumar-sachan-ors-v-state-of-u-p-ors-51924
- **Pages:** 7

## Headnote

Law-Criminal
Procedure
Code,1973-Section
482-Indian
Penal
Code,1860-Section 447 - Prevention of
Damage of Public Property Act, 1984section 2/3-challenge to -summoning
order-demarcation of land-the petitioners
claimed ownership of Gata No. 437, which
they purchased through registered sale
deeds, while the State alleged that they
had encroached on the adjacent public land
i.e.
Gata
no.
436-Held,
the
court
determined
that
the
issue
was
fundamentally a civil land dispute not a
criminal matter-the demarcation of land,
ordered by the court, could not be
completed due to the lack of fixed
boundary points-The prosecution failed to
prove any intent to commit criminal
offence, a requirement for a conviction u/s
447 IPC. (Para 1 to 22) (E-6)
604 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

5 All. Akhilesh Kumar Sachan & Ors. Vs. State of U.P. & Ors.
603

VIII. Criminal Revision No.687 of
2019 filed by Himanshu Tiwari pending
before the learned Court of Additional
Sessions Judge-I, Lucknow.

IX. Criminal Appeal No.115 of
2023, under Section 341 Cr.P.C. "Himanshu
Tiwari Vs. State & Anr. Filed by Sri
Himanshu Tiwari pending before learned
court of Additional Sessions Judge-XV,
Lucknow.

X. Civil Misc. Case No.210/2019,
under Section 25 of Guardians and Wards
Act, 1890 r/w Section 6(a) of The Hindu
Adoptions and Maintenance Act, 1956
pending before learned court of Additional
Principal Judge-I, Lucknow.

14. Learned Principal Judge, Family
Court, Lucknow is also directed to decide
the decree of divorce filed by the parties
bearing Case No.1220 of 2024, under
Section 13(B) of the Hindu Marriage Act
within two months from the date of filing of
certified copy of this judgment before it by
diluting the period of motions in view of the
judgment of Hon'ble Supreme Court in the
case of Amardeep Singh (Supra) and
Division Bench of this Court in the case of
Shalini Massey (Supra).

15. Learned Additional Principal
Judge-I, Family Court, Lucknow is also
directed to handover Rs.62,000/- to the wife,
namely, Mitali Tiwari within 20 days from
the date of pronouncement of this judgment,
which has been deposited by Himanshu
Tiwari
on
29.04.2024
in
Case
No.1478/2015, under Section 125 Cr.P.C.

16. The husband, namely, Himanshu
Tiwari is also directed to give Rs.5,00,000/-
to the wife, namely, Mitali Tiwari within ten
days after the decree of divorce under
Section 13(B) of the Hindu Marriage Act is
passed.

17. With the aforesaid directions, the
instant applications under Section 482
Cr.P.C. stands allowed and the proceedings
of the cases challenged in these applications
as well as the reference of the cases given in
paragraph No.13 of this judgment are hereby
quashed.
----------
(2024) 5 ILRA 603
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.05.2024

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Application U/S 482. No. 4282 of 2024

Akhilesh Kumar Sachan & Ors.
 ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Sanjay Kumar Srivastava, Akshat Kumar

Counsel for the Opposite Parties:
G.A.

Criminal
Law-Criminal
Procedure
Code,1973-Section
482-Indian
Penal
Code,1860-Section 447 - Prevention of
Damage of Public Property Act, 1984section 2/3-challenge to -summoning
order-demarcation of land-the petitioners
claimed ownership of Gata No. 437, which
they purchased through registered sale
deeds, while the State alleged that they
had encroached on the adjacent public land
i.e.
Gata
no.
436-Held,
the
court
determined
that
the
issue
was
fundamentally a civil land dispute not a
criminal matter-the demarcation of land,
ordered by the court, could not be
completed due to the lack of fixed
boundary points-The prosecution failed to
prove any intent to commit criminal
offence, a requirement for a conviction u/s
447 IPC. (Para 1 to 22) (E-6)
604 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Mrs. Renu Agarwal, J.)

1. Heard learned counsel for the
applicant as well as learned AGA for the
State.

2. Instant petition under Section 482
Cr.P.C. has been preferred for quashing of
the F.I.R. and consequential criminal
proceedings with the following prayer:-

"Wherefore, it is most respectfully
prayed that for the reasons mentioned in the
accompanying petition this Hon'ble Court
may very kindly be pleased to set-aside the
impugned order dated 23.06.2022 passed by
learned
Additional
Chief
Judicial
Magistrate-V, Lucknow, in case No. 82783
of 2022 in First Information Report No.
0631 of 2018 under Section 447 I.P.C. and
2/3 Prevention of Damage to Public
Property Act, 1984 at the police stationAshiyana, District-Lucknow.

It is further prayed that this
Hon'ble Court may kindly be pleased to
quash
the
chargesheet
No.1
dated
29.06.2020 in First Information Report No.
0631 of 2018 under Section 447 I.P.C. and
2/3 Prevention of Damage to Public
Property Act, 1984 at the police stationAshiyana, District-Lucknow.

It is further prayed that this
Hon'ble Court may kindly be pleased to
quash the entire proceedings of Case No.
82783 of 2022 State Vs. Shrawan Sachan
and Ors. arises out from First Information
Report No. 0631 of 2018 under Section 447
I.P.C. and 2/3 Prevention of Damage to
Public Property Act, 1984, at the police
station-Ashiyana,
District-Lucknow
pending in the court of learned Additional
Chief Judicial Magistrate-V, Lucknow"

3. It is submitted by learned counsel for
the petitioner that impugned order dated
23.06.2022 passed by the learned Additional
Chief Judicial Magistrate-V, Lucknow in
case No. 82783 of 2022 in First Information
Report No. 0631 of 2018 under Section 447
I.P.C. and 2/3 Prevention of Damage to
Public Property Act, 1984 at the police
station-Ashiyana, District-Lucknow is a non
speaking, unreasoned and cryptic order. The
Court has taken cognizance of charge-sheet
and summoned the accused on the basis of
charge-sheet submitted by Investigating
Officer on 19.06.2020 under Section 447
I.P.C. and 2/3 of Prevention of Damage of
Public Property Act, 1984 with respect to
Gata No. 436 measuring area 0.635 hectare
situated in village Aurangabad Jagir, Tehsil
Sarojni Nagar, Police Station-Ashiyana,
District-Lucknow.
Investigating
Officer
without investigating the matter at all
submitted charge-sheet arbitrarily under
Section 447 I.P.C. Gata No. 437-Sa of
village Aurangabad Jageer, Sarojini Nagar,
Lucknow consist of total area of 20 Biswa.
Out of total 20 Biswa of Gata No. 437-Sa,
the petitioner No. 2 purchased 10 Biswa
through
registered
sale
deed
dated
02.06.2003 and reamining 10 Biswa land of
Gata No. 437-Sa was purchased by the
petitioner No. 3 through registered sale-deed
dated 23.05.2006 and the name of petitioner
No. 2 and 3 were also mutated in the revenue
records. It is further submitted that
petitioners
have
never
raised
any
construction over any part of Gata No. 436
situated in Village Aurangabad and they are
in peaceful possession of Khasra No. 437-Sa
and constructed four rooms, one Kitchen,
Two Latrines and Bathrooms and one Gate
and also started living with effect from the
year 2009. Tehsildar, Lucknow Nagar
Nigam issued a notice dated 02.07.2007
regarding the encroachment over land of
Khasra No. 436. Immediately after the
service of notice, petitioner No. 2 submitted
the reply on 16.07.2007. After the lapse of
5 All. Akhilesh Kumar Sachan & Ors. Vs. State of U.P. & Ors.
605
about 8 years, when the petitioners were on
their work and were not present over the
aforesaid property, opposite party No. 4
demolished the part of the construction of
the petitioners with the help of officials.
Petitioner,
thereafter,
approached
the
Hon'ble High Court by filing Writ Petition
No. 7423 (M/B)/2015 Akhilesh Kumar
Sachan and Ors. Vs. State of U.P. After
hearing the matter at length, Hon'ble Court
directed ?petitioners are permitted to apply
for demarcation and directed that if the said
application is made, the demarcation shall
be carried out in accordance with law
expeditiously preferably within period of
one month from the date of receipt of
certified copy of this order?. It is next
contended that petitioners along with
certified copy of the order dated 18.08.2015
applied for demarcation in the office of
Commissioner on 18.08.2015, thereafter,
the Additional Commissioner, Lucknow
Nagar
Nigam
issued
a
letter
dated
04.09.2015 to apply for demarcation of land
in question in the Court of Deputy Collector
Sarojini Nagar, Lucknow. When the
petitioners moved an application dated
15.09.2015 before the Commissioner, it was
replied that the land in question comes
within the territorial limit of Municipal
Authorities, therefore demarcation was also
done
by
Nagar
Nigam,
Lucknow.
Thereafter, the petitioner filed contempt
petition dated 2271(C) of 2015 but
demarcation could not take place because of
non-availaibility
of
fixed
point
the
demarcation of plot is not possible. The
Tehsildar, Shri Rajesh Kumar Srivastava
appeared before the Hon'ble Court in
contempt proceedings and stated that
because of non-availability of fixed point,
demarcation of land is not possible by
traditional method of demarcation. Finally
the contempt petition was disposed of with
a note that petitioner are directed to apply
for demarcation in terms of order issued by
Writ Court dated 18.08.2018 within a period
of three months. Opposite parties instead of
demarcating the lands lodged F.I.R. against
the petitioner. It is also submitted that the
informant was itself part of committee who
was assigned the work of demarcation and
he was well aware of the fact that
demarcation of the land is not possible. It is
also submitted that it is civil dispute which
has been given the colour of criminality. It
is further contended by learned counsel for
the applicant that he has purchased Khasra
No. 437 and he is very well in possession of
Khasra No. 437 and he has nothing to do
with Khasra No. 436. When the petitioners
came to know about the said F.I.R. they
provided all the documents of Court
proceedings
to
Investigating
Officer
including copy of the judgments but
Investigating Officer without taking into
account the said orders, arbitrarily filed
charge-sheet against petitioners. Learned
trial court had taken cognizance on
23.06.2022 without application of mind and
without looking into the fact whether any
material is available against the petitioners
for cognizance. Hence, it is prayed to quash
the impugned order dated 23.06.2022.

4. Learned AGA for the State
submitted that petitioners encroached Gata
No. 436 in the garb of Gata No. 437 and the
Gata No. 436 is public land, therefore,
charge-sheet is filed with due care and Court
has taken cognizance well on the basis of
evidence collected during the investigation.

5. I have heard the rival submissions
advanced on behalf of the parties and
perused the entire material brought on
record. The questions arises as to whether
the land in dispute belonged to applicants or
they had illegally encroached upon the land
vested in Gram Sabha. It can be adjudicated
606 INDIAN LAW REPORTS ALLAHABAD SERIES
by Revenue Court itself, if it is found that
petitioners have encroached public land then
the proper proceedings for eviction of the
unauthorized occupants can be undertaken
under Section 67 of the Revenue Code 2006.
The short cut procedure should not be
adopted to dis-possess the petitioner without
applying due procedure of law.

6. The Sub-Divisional Officer is
empowered
to
take
action
on
the
information
received
from
Bhumi
Prabandhak Samiti or other authority or
Lekhpal concerned about such illegal
occupation or damage or mis-appropriation
of Gram Sabha land. In any case, any person
is found in illegal possession of such land in
contravention of provisions of Revenue
Code, The Sub-Divisional Officer has to
issue notice to the person concerned to show
cause as to :- (I) why compensation for
damage, misappropriation or wrongful
occupation specified in the notice be not
recovered from him? (ii) why he should not
be evicted from such land?

7. The person to whom such a notice is
issued under sub-Section (2) of Section 67
of the Code, can submit his reply disclosing
his right or entitlement or nature of
occupation over the land in question,
thereafter the Sub-Divisional Officer should
pass a reasoned order. The amount of
compensation
for
damage
or
misappropriation of the property or for
wrongful occupation, as the case may be,
recovered from such person as arrears of
land revenue. Under sub-Section (4) of
Section 67, the Officer is empowered to
discharge the notice if he forms an opinion
that the person showing cause is not guilty
of causing the damage or misappropriation
or wrongful occupation of the property in
question. Any person aggrieved by the order
of Sub-Divisional Officer may prefer an
appeal to the Collector within thirty days
from the date of such order. The procedure
for undertaking the procedure under Section
67 of the Revenue Code, thus, is complete in
itself and does not leave any scope for any
further computation of damage for wrongful
occupation,
damage
caused
or
misappropriation of Gram Sabha land.

8. Section 210 of Revenue Code
confers supervisory power on Board or
Commissioner to call for the record of any
proceedings decided by Sub-Divisional
Officer in which no appeal lies for the
purpose of satisfying itself or himself as to
the legality or propriety of any order passed
in such suit. The nature of eviction
proceedings under Section 67 of Revenue
Code, 2006 is however, summary in nature.
The rights of parties claimed, if gives rise to
a dispute requiring adjudication on the
question of fact, a suit for declaration has to
be instituted against such person. Gram
Sabha may institute a suit under Section 145
of the U.P. Revenue Code, 2006 for
declaration of its right or to seek any further
relief.

9. 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 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 damages 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 with
5 All. Akhilesh Kumar Sachan & Ors. Vs. State of U.P. & Ors.
607
cases of damage to public property. The
?Public Property? as defined under Section
2(b) of P.D.P.P. Act, 1984 means any
property, whether immovable or movable
(including any machinery) which is owned
by or under possession or under the control
of the Central or State Government or any
local authority or any Corporation or any
institution established by the Central
Provincial or State Act or its undertaking.

10. Section 3 of the P.D.P.P. Act, 1984
provided that anyone who commits mischief
by doing any act in respect of any ?public
property? including the nature referred in
sub-Section(2) in the said Section shall be
punished with imprisonment and a fine
depending upon the nature of the property as
per sub-Section (1) and sub-Section (2) of
Section 3 of the P.D.P.P. Act, 1984. Section
4 provides punishment for an act of
?Mischief? causing damage to public
property by fire or explosive substance.

11. The provisions oblige a person
found guilty of commission of offence to
pay the damage or loss caused to the public
property. This Act, thus, covers the specific
area of damage or loss or destruction to the
public properties and recovery of such
damages from a person who is found guilty
of such damage.

12. In Re. Destruction of Public and
Private Properties, In Re vs. State of Andhra
Pradesh and others1. Taking a serious note
of various instances where there was a large
scale destruction of public and private
properties in the name of agitations, bandhs,
hartals and the like, suo motu proceedings
had been initiated by the Apex Court and
two committees were appointed to give
suggestions on strengthening of the legal
provisions of P.D.P.P. Act to effectively
deal
with
such
instances.
The
recommendations of two committees were
considered and it was observed that the
suggestions were extremely important and
they constitute sufficient guidelines which
need to be adopted. It was left open to the
appropriate authorities to take effective
steps for their implementation.

13. In a recent decision in Kodungallur
Film Society and another vs. Union of India
and others2, relief was sought to issue a
mandamus to the appropriate authorities to
strictly follow and implement the guidelines
formulated by the Apex Court "Destruction
of Public & Private Properties In re:", with
regard to measures to be taken to prevent
destruction of public and private properties
in mass protests and demonstrations and
also regarding the modalities of fixing
liability and recovering compensation for
damages caused to public and private
properties during such demonstration and
protests.

14.

It
was
acknowledged
in
Kodungallur
Film
Society2
that
the
recommendations of the Committee noted in
the said judgment travesed the length and
breadth of the issue at hand and, if
implemented in their entirety, would go a
long way in removing the bane of violence
caused against persons and property.

15. As far as implementation of the
said recommendations, the Union had
advised the States to follow the same in its
letter and spirit. Issuing directions to
implement recommendations made by the
Apex Court in both the above decisions.
Direction was issued in Kodungallur Film
Society2 to both the Central and the State
Government to do the same at the earliest.

16. In compliance thereof, the State of
U.P. notified the "Uttar Pradesh Recovery of
608 INDIAN LAW REPORTS ALLAHABAD SERIES
Damages to Public and Private Property
Rules, 2020", framed with a view to provide
for recovery of damages to public and
private property during hartal, bundh, riots,
public commotion, protests etc. in respect of
the property and imposition of fine. The said
'Rules' provide for constitution of the claims
tribunal to investigate the damages caused
and to award compensation related thereto.

17. 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.

18. In the said set of circumstances, the
inherent dispute is whether the construction
were raised by petitioner in Gata no. 437-Sa
or Gata No. 436 which can be decided very
well
by
demarcation
proceedings.
Demarcation of the land was directed by this
Court itself, and the Committee of seven
members reported that the land in dispute is
now thickly populated and no fixed point
can be ascertained, therefore, at this stage, it
is not possible to conduct demarcation
proceedings. It is the duty of State to
demarcate and show that the disputed land
on which construction is raised belongs to
State before lodging the F.I.R. against a
person stating that he had encroached public
land. First of all, State should show that it is
public land. There is no dispute over the fact
that land of Gata No. 436 belongs to State,
however, Gata no. 437 containing 20 Biswa
of land was purchased by petitioner No. 2
and 3. The construction, as per the
petitioner, is raised only on gata No. 437. If
State wants to proceed to lodge F.I.R. on the
ground that construction was raised on Gata
No. 436, prima facie, there must be
demarcation

19. So far as allegation of criminal
offence under Section 447 I.P.C. is
concerned, prosecution has to prove and the
Court has to return a finding on the fact that
trespassing was committed with one of the
intent enumerated in Section 441 I.P.C.
Prosecution has not only to allege but also to
prove that entry of unlawful occupation
must be with the intention to commit an
offence or to intimidate, insult or annoy any
person in possession of property. Every
trespass by itself is not criminal. In the
absence of such finding conviction under
Section 447 cannot be sustained.

20. Offence under Section 447 I.P.C. is
compoundable by Magistrate it is to be tried
summarily. Even if there is there is no
trespass, an accused may lay a bonafide
claim and right in the land in question, then
too, offence under Section 447 I.P.C. cannot
be charged against accused. If the petitioners
are bonafide purchasers of the land in
dispute and in possession State has right to
dispossess him by proving that it is the part
of Gata No. 436 but State cannot take action
against the citizen. Mere trespassing without
intention to intimidate, insult or annoy is not
sufficient to constitute offence under
Section 447 of the I.P.C.

21. Here in the case at hand, petitioners
specifically established their right that they
are bona fide purchaser, hence, the lodging
of F.I.R. for demolishing the construction of
petitioner is unfair. Information lodged
F.I.R. without disclosing the fact that
5 All. Anuj Pandey Vs. State of U.P. & Anr.
609
demarcation proceedings were directed by
this Court and the Committee of seven
members failed to demarcate, even chargesheet does not disclose the appreciation of
any particular material on record against the
petitioners. The order of taking cognizance
passed by the Magistrate is also passed in a
cursory manner, even without mentioning
the contents of case diary, hence, the
criminal action proposed against the accused
is a result of inadvertent taking of
cognizance. In view of the discussions as
above, F.I.R., charge-sheet and the criminal
proceedings initiated against the applicants
vide order dated 23.06.2022 in case crime
No. 82783 of 2022 in First Information
Report No. 0631 of 2018 under Section 447
I.P.C. and 2/3 of Prevention of Damage to
Public Property Act, 1984, Police StationAshiyana, District-Lucknow pending the
Court of learned Additional Chief Judicial
Magistrate-V, Lucknow deserves to be setaside.

22. In view of the discussions as above,
impugned order dated 23.06.2022 passed by
the learned Additional Chief Judicial
Magistrate-V, Lucknow, in case No. 82783
of 2022 in First Information Report No.
0631 of 2018 under Section 447 I.P.C. and
2/3 Prevention of Damage to Public
Property
Act,
1984,
Police
StationAshiyana, District-Lucknow is hereby setaside and instant petition is hereby allowed.
----------
(2024) 5 ILRA 609
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.05.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482. No. 4327 of 2024

Anuj Pandey ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Devarshi Mishra, Ayush Tandon, Rajiv Misra

Counsel for the Opposite Parties:
G.A.

A. Criminal Law-Criminal Procedure Code,
1973-Section
482-Indian
Penal
Code,
1860-Sections 498-A, 323, 504 & 506 - 3⁄4
D.P. Act,1984 -quashing of-summoning
order-parties entered into an amicable
settlement and they already filed a divorce
petition by mutual consent- Held, keeping
in view the nature and gravity of the
offence which are private dispute, it deems
proper to quash the proceeding of the
instant case.(Para 1 to 17)

B. In the exercise of the power u/s 482 and
while dealing with the plea that the dispute
has been settled, the high court must have
due regard to the nature and gravity of the
offence. The High court may quash the
criminal proceeding if in view of the
compromise between the disputants, the
possibility of a conviction is remote and the
continuation of a criminal proceeding
would cause oppression and prejudice.
(Para 11)

The application is allowed. (E-6)

List of Cases cited:

1. Amardeep Singh Vs Harveen Kaur (2017) AIR
SC 4417

2. Shalini Massey Vs Neeraj Samuel Dass, FAPLD
No. 392 of 2019

3. B.S Joshi Vs St. of Har. & ors. (2003) 4 ACC
675

4. Gian Singh Vs St. of Punj. (2012) 10 SCC
303

5. Dimpey Gujral & ors. Vs U.T. Thru Admin.
(2013) 11 SCC 697