# Amit Goel & Ors v. State of U.P. & Ors - **Citation:** (2023) 9 ILRA 139 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2023-08-09 - **Case number:** Criminal Misc. Writ Petition No. 5098 of 2023 - **Bench:** Anjani Kumar Mishra, Ms. Nand Prabha Shukla - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-goel-ors-v-state-of-u-p-ors-50759 - **Pages:** 4 ## Headnote (A) Criminal Law - Indian Penal Code, 1860 - Section 425 - Mischief , The Prevention of Damages to Public Property Act, 1984 - Sections 3 - Mischief causing damage to public property, Section 4 - Mischief causing damage to public property by fire or explosive substance, The Revenue Code, 2006 - Section 67 - Power to prevent damage, misappropriation and wrongful occupation of Gram Panchayat property - 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.(Para -10 ) Quashing of FIR - contention - FIR malicious - constructions raised over land - not evacuee property - not enemy property - under control of Custodian - Assistant Custodian Enemy Property U.P. and Uttarakhand declared - plot no.835 and plot no.843 as non-enemy property - FIR also identifies two plots, including Plot number 842, which is not covered by order. (Para - 2,3,4,8) HELD:- Petitioners not entitled to any benefit under judgments cited. No relief can be granted. Not established that plot no.842 over which constructions are being raised as per the allegations in the FIR, is not enemy property. (Para -9,11 ) Writ Petition dismissed. (E-7) List of Cases cited: ## Text 9 All. Amit Goel & Ors. Vs. State of U.P. & Ors. 139 12. On the basis of foregoing discussions and judicial authorities, I find no fault with the finding and reasoning of learned trial court while dismissing the application of discharge moved by the revisionist vide impugned order dated 02.03.2022. The victim has supported F.I.R. version under Sections 161 and 164 Cr.P.C., who is admittedly minor and was aged around 10 years at the time of incident which dates back to year 2017. The sworn testimony of the victim before the Court during trial as P.W. 3, in which she has exculpated the accused cannot be considered as a material, which was available before the Court while considering the discharge application as provided under Section 227 of the Code. The grounds taken by the revisionist before this Court and the documents relied upon can be brought before trial court by the accused-revisionist at the stage of defence evidence as trial is in progress. There is no irregularity, illegality and perversity in impugned order passed by learned court below. The revision is devoid of merits and deserves to be dismissed. 13. Accordingly, the revision stands dismissed with above observations. ---------- (2023) 9 ILRA 139 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 09.08.2023 BEFORE THE HON'BLE ANJANI KUMAR MISHRA, J. THE HON'BLE MS. NAND PRABHA SHUKLA, J. Criminal Misc. Writ Petition No. 5098 of 2023 Amit Goel & Ors. ...Petitioners Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioners: Ms. Shreya Gupta, Sri Ravi Anand Agarwal Counsel for the Respondents: G.A. (A) Criminal Law - Indian Penal Code, 1860 - Section 425 - Mischief , The Prevention of Damages to Public Property Act, 1984 - Sections 3 - Mischief causing damage to public property, Section 4 - Mischief causing damage to public property by fire or explosive substance, The Revenue Code, 2006 - Section 67 - Power to prevent damage, misappropriation and wrongful occupation of Gram Panchayat property - 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.(Para -10 ) Quashing of FIR - contention - FIR malicious - constructions raised over land - not evacuee property - not enemy property - under control of Custodian - Assistant Custodian Enemy Property U.P. and Uttarakhand declared - plot no.835 and plot no.843 as non-enemy property - FIR also identifies two plots, including Plot number 842, which is not covered by order. (Para - 2,3,4,8) HELD:- Petitioners not entitled to any benefit under judgments cited. No relief can be granted. Not established that plot no.842 over which constructions are being raised as per the allegations in the FIR, is not enemy property. (Para -9,11 ) Writ Petition dismissed. (E-7) List of Cases cited: 1. Ashok Kumar & anr. Vs St. of U.P., U/S 482 No. 20181 of 2021 2. Munsi Lal & anr. Vs St. of U.P. & anr., U/S 482 No. 9964 of 2020 140 INDIAN LAW REPORTS ALLAHABAD SERIES 3. Devnath Yadav Vs St. of U.P. & ors. , Crl. Misc.W.P. No. 1131 of 2021 (Delivered by Hon'ble Ms. Nand Prabha Shukla, J.) 1. Heard learned counsel for the petitioners, learned counsel for the first informant and learned A.G.A. for the State. 2. The instant writ petition seeks quashing of the FIR dated 16.02.2023 giving rise to Case Crime No.56 of 2023, under Sections 3 and 4 of the Prevention of Damages to Public Property Act, 1984, Police Station- Civil Lines, District- Muzaffarnagar. 3. The main contention of learned counsel for the petitioner is that the First Information Report is malicious because the property over which constructions are alleged to be in the process of being raised is not evacuee property as it has been held that 214.84 sq. meters of plot no.835 area 0.061 and plot no.843 area 0.082 hectares is not enemy property. This order has been passed by the Assistant Custodian Enemy Property U.P. and Uttrakhanad 08.02.2019. The order dated 02.08.2019 filed as Annexure 11 to this writ petition declares only 214.84 sq. meters of plot no.835 area 0.061 and plot no.843 area 0.082 hectares to be not enemy property. 4. The First Information Report mentions these two plots, but also contains mention of Plot number 842, which is not covered by the order relied upon, and therefore the first submission of learned counsel for the petitioner is not liable to be accepted. 5. For the same reason, the submission of learned counsel for the petitioner that the FIR had been lodged, pending consideration of a review application does not improve the case of the petitioner. 6. The next submission of learned counsel for the petitioner is that raising of constructions would not bring the action within the purview of Section 3 or 4 of the Prevention of Damages to Public Property Act. In support of this submission, reliance has been placed upon the judgment in Ashok Kumar and Another Versus State of UP passed in an Application U/S 482 No. 20181 of 2021 dated 06.04.2022 and the order dated 06.08.2020 passed in Application U/S 482 No. 9964 of 2020 , Munsi Lal and Another Vs. State of U.P. and Another. The judgment in the case of Ashok Kumar (supra) relies upon the judgment in Munsi Lal (supra). 7. Both these cases cited pertain to land of Gaon Sabha and one of the reasons given for quashing the proceedings under the Prevention of Damages to Public Property Act was that Section 67 of the Revenue Code, 2006 provides a complete procedure for dealing with encroachment/unauthorized occupation of Gaon Sabha land, which is a complete code in itself. The relevant part of the judgment in Munsi Lal reads as follows:- "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 9 All. Amit Goel & Ors. Vs. State of U.P. & Ors. 141 land by illegal encroachment against a person permanently residing in the village or a tenure holder of any land in the village in question." 8. Admittedly, the impugned FIR alleges constructions being raised over land, at least part whereof, is enemy property and under the control of the Custodian. 9. Under the circumstances, the petitioners are not entitled to any benefit under the judgments cited. 10. Besides, the judgment in the case of Munshi Lal (supra) has been considered by a Division Bench of Court in Criminal Misc. Writ Petition No. 1131 of 2021, Devnath Yadav Versus State of U.P. and 3 others, with an observation 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 142 INDIAN LAW REPORTS ALLAHABAD SERIES 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. 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 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. However, we find that in view of Section 425 of IPC and Section 3(1) of the Prevention of Damage to Public Property Act, 1984, the action of the petitioner clearly falls within the purview of these two sections, especially when construction of a boundary wall over public property is clearly admitted by petitioner." 11. The afore-cited judgments is a complete answer to the arguments raised by learned counsel for the petitioners and, therefore, no relief is liable to be granted in this writ petition. It is also not established that plot no.842 over which constructions are being raised as per the allegations in the FIR, is not enemy property. 12. Accordingly the writ petition fails and is dismissed. ---------- (2023) 9 ILRA 142 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 05.09.2023 BEFORE THE HON'BLE ANJANI KUMAR MISHRA, J. THE HON'BLE VIVEK KUMAR SINGH, J. Criminal Misc. Writ Petition No. 10716 of 2023 M/S Maa Vaishno Traders, Kaushambi ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: