# Jitendra v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 615
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-10
- **Case number:** Application U/S 482. No. 7662 of 2023
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-v-state-of-u-p-anr-51926
- **Pages:** 8

## Headnote

Law-Criminal
Procedure
Code,1973-Section 482, 239-Prevention of
Damage of Public Property Act, 1984section 2/3-challenge to -summoning
order-encroachment of land- The present
case originated from an FIR alleging that
the applicant (minor) and others had
placed straw on public property (a chak
marg in village Gata no. 625) with the
intent to encroach upon it-the applicant
claimed
that
the
straw
was
placed
temporarily and without any intent to
illegally occupy the land-The trial court had
rejected the discharge application without
properly considering the evidence-The act
emphasized
that
the
Act
applies
in
situations of actual damage to public
property, in this case, no actual damage
occurred-The court allowed the application
and quashed the entire proceedings.(Para
1 to 25)

The application is allowed. (E-6)

List of Cases cited:

## Text

5 All. Jitendra Vs. State of U.P. & Anr.
615
hereby quashed so far as it relates to the
instant applicant.

16. Learned Principal Judge, Family
Court, Lucknow is also directed to decide
the decree of divorce filed by the parties
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).

17. With the aforesaid directions, the
instant application under Section 482
Cr.P.C. stands allowed.
----------
(2024) 5 ILRA 615
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.05.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482. No. 7662 of 2023

Jitendra ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Neeranjan, Pratyush Mishra

Counsel for the Opposite Parties:
G.A.

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 482, 239-Prevention of
Damage of Public Property Act, 1984section 2/3-challenge to -summoning
order-encroachment of land- The present
case originated from an FIR alleging that
the applicant (minor) and others had
placed straw on public property (a chak
marg in village Gata no. 625) with the
intent to encroach upon it-the applicant
claimed
that
the
straw
was
placed
temporarily and without any intent to
illegally occupy the land-The trial court had
rejected the discharge application without
properly considering the evidence-The act
emphasized
that
the
Act
applies
in
situations of actual damage to public
property, in this case, no actual damage
occurred-The court allowed the application
and quashed the entire proceedings.(Para
1 to 25)

The application is allowed. (E-6)

List of Cases cited:

1. In Re Vs St. of A.P. & ors. (2009) 5 SCC 212

2. Kodungallur Film Socy. & Anr. Vs U.O.I. & Ors
(2018) 10 SCC 713

(Delivered by Hon'ble Shamim Ahmed, J.)

1. The instant application has been
moved on behalf of the applicant with a
prayer to quash the order dated 16.05.2023
passed by Learned Additional Civil Judge
(C.D.) Fast/ACJM. Ambedkar Nagar in
Criminal Misc. Case No. 1223/2023 vide
Crime No. 12/2020, U/s 2/3 of Prevention of
Damage to Public Property Act, Police
Station Maharuwa, District- Ambedkar
Nagar, on the application of applicant under
Section 239 Cr.P.C and further be pleased to
discharge the applicant.

2. Heard Sri Neeranjan Singh, learned
counsel for the applicant and Sri Ashok
Kumar Singh, learned A.G.A.-1 for the
State.

3. Learned counsel for the applicant
submitted that the complainant-Lekhpal of
the village concerned had lodged an F.I.R.
dated 02.02.2020 bearing No. 12/2020 U/s
3/4 of Prevention of Damage to Public
616 INDIAN LAW REPORTS ALLAHABAD SERIES
Property Act, Police Station Maharuwa
against the applicant and 6 other persons
stating therein that the alleged accused
persons with the intention of grasping the
public property kept the "puaal" straw on
Gata No. 625 which is recorded as "chak
marg" in Revenue record.

4. Learned counsel for the applicants
further submitted that the applicant was
minor at the time of lodging of F.I.R. and the
alleged allegation leveled against the
applicant by the Complainant is false and
fabricated. The true fact is that the applicant
did not intend to grasp any public utility land
but had kept the straw (Puaal) over the said
Gata on temporary basis as the other co-
accused has also put the same and all the
(Puaal) Straw has been removed and the said
Gata was being used by the villagers and
other people since long year back.

5. Learned counsel for the applicant
further submitted that the Investigating
Officer conducted the investigation in a very
mechanical and arbitrary manner and filed
the charge-sheet on 04.10.2020 against the
applicant under Section 2/3 of Prevention of
Damage to Public Property Act and strucked
off the Section 3/4 of Prevention of Damage
to Public Property Act.

6. Learned counsel for the applicant
further submitted that the applicant had
earlier filed an application under Section
482 Cr.P.C. in which this Hon'ble Court and
vide order dated 23.02.2023 the applicant to
move
discharge
application
through
counsel.

7. Learned counsel for the applicant
further submitted that the thereafter the
applicant moved discharge application
before the court of learned Additional Civil
judge (C.D) Fast/ACJM. Ambedkar Nagar
and the concerned court vide order dated
16.05.2023
rejected
the
discharge
application without considering the material
evidence on record.

8. Learned counsel for the applicant
further submitted that the applicant was
selected in the Indian Army under Agniveer
scheme vide selection list year 2023 but he
was not allowed to join due to very fact of
FIR being lodged against him without any
case of criminal nature made out against
him.

9. Learned A.G.A. for the State
controverts the submissions of learned
counsel for applicant on the ground that this
is not a stage where minute and meticulous
exercise with regard to the appreciation of
evidence may be done and truthfulness of
the allegations could only be tested in a
criminal trial and, therefore, the application
is misconceived and liable to be dismissed.

10. After considering the argument
advance by learned counsel for the parties,
this Court is of the view that the relevant
provision of the Act be dealt with, which are
quoted here as under:

Prevention of Damage to Public
Property Act, 1984

Section 2. Definitions.--In this Act,
unless the context otherwise requires,--

(a) "mischief" shall have the same
meaning as in section 425 of the Indian
Penal Code (45 of 1860);

(b) "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
5 All. Jitendra Vs. State of U.P. & Anr.
617

(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.

Section
3.
Mischief
causing
damage to public property

S 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 property 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.

The "Prevention of Damage to
Public Property Act, 1984" is legislation
aimed at preventing vandalism and damage
to public property in India. It defines key
terms like "mischief" and "public property"
and outlines penalties for those who commit
acts of mischief causing damage to such
property.

The "Prevention of Damage to
Public Property Act, 1984" is legislation
aimed at preventing vandalism and damage
to public property in India. It defines key
terms like "mischief" and "public property"
and outlines penalties for those who commit
acts of mischief causing damage to such
property.

According to the Act, "mischief" is
defined in alignment with Section 425 of the
Indian Penal Code (IPC), which generally
refers to intentionally causing damage to
property. "Public property" encompasses
various forms of property owned or
controlled
by
governmental
bodies,
corporations, or specified institutions, and
includes both immovable and movable
assets.

Section 3 of the Act specifies the
offense related to mischief causing damage
to public property. It delineates two
categories of public property: general
public property and specific types of
property critical to infrastructure such as
water, power, telecommunications, and
transportation systems. The punishment for
these offenses varies based on the type of
property damaged, with more severe
penalties
for
damage
to
critical
infrastructure."
618 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Object and idea of enacting the
Prevention of Damages to Public Property
Act, 1984 is 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 with cases of damage to public
property. The "public property" as defined
under Section 2(b) of the P.D.P.P. Act, 1984
means any property, whether immovable or
movable (including any machinery) which is
owned by or in possession of 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.
Section 3 of the P.D.P.P. Act, 1984 provides
that anyone who commits mischief by doing
any act in respect of any 'public property'
including the nature referred in subsection
(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. The P.D.P.P. Act, 1984
.

12. The Act was enacted to empower
authorities to effectively address cases of
damage to public property, especially during
riots or public disturbances. Its aim is to
deter acts of vandalism and protect public
assets essential for the functioning of
society.

The court is explaining that the
Prevention of Damage to Public Property
(PDPP) Act, 1984, only applies to situations
where public property is damaged or
destroyed
during
riots
or
public
demonstrations. This means if there's
damage to things like government buildings
or infrastructure during these events, the
PDPP Act can be used to address it.

So, if there's no actual damage or
loss related to Gram Sabha land or any other
village land due to illegal encroachment by
someone living in the village or holding land
there temporarily and remove encroachment
after the notice, without causing damage or
decreasing the land's value of the property,
then the PDPP Act wouldn't be applicable.
In essence, if someone occupies land
unlawfully temporary but doesn't cause any
harm or decrease in value to the land, the
PDPP Act doesn't come into play. This
means that the Act is primarily concerned
with instances where there is actual damage
to public property or where the value of the
property is diminished due to unlawful
Occupation.

13. In Re. Destruction of Public and
Private Properties, In Re vs. State of
Andhra Pradesh and others, 2009 (5)
SCC 212. 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
recommendation 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.

14.

In
a
recent
decision
in
Kodungallur Film Society and another vs.
Union of India and others, 2018 (10) SCC
713, the relief was sought to issue a
mandamus to the appropriate authorities to
strictly follow and implement the guidelines
5 All. Jitendra Vs. State of U.P. & Anr.
619
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.

15.

It
was
acknowledged
in
Kodungallur Film Society (supra) that the
recommendations of the Committee noted in
the said judgment traversed the length and
breadth of the issue at hand and, if
implemented in their entirely, would go a
long way in removing the bane of violence
caused against persons and property. 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 Society to both
the Central and the State Government to do
the same at the earliest.

16. From the aforesaid it is clear that
the underline purpose and idea of enacting
the Prevention of Damages to Public
Property Act, 1984 is to provide benefits to
those persons or to take a suitable remedial
action to prevent the destruction of public
and private properties in mass protest,
demonstration, hartal, agitation and in this
damage to the public and private properties,
pursuant to the ratio laid down by Hon'ble
Apex Court in the case of Kodungallur
Film
Society
(supra)
the
State
Governments were granted liberty to form a
committee to carry out and implement the
recommendations made by the Hon'ble
Apex Court in the above decision.
Accordingly, the State of Uttar Pradesh too
has notified "Uttar Pradesh Recovery of
Damages to Public and Private Property
Rules, 2020" with a view to provide for
recovery of damages to public and private
property during hartal, bundh, riots, public
commotion, protests etc. in regard to
property and imposition of fine. The said
Rules provides for constitution f the claims
tribunal to investigate the damages caused
and to award compensation related thereto.

17. The judgment in the case of
Munshi Lal and Another (supra), relied
upon after noticing the provisions of the
PDPP Act, has taken the view that as far as
criminal
proceedings
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. In so far as the observation
made in the decision that the Act covers the
specific area relating to any act of vandalism
including the destruction or damage during
any riots or public demonstration in the
name of agitations, bandhs, hartals and the
like, is concerned, reference may be had to a
recent decision by a Division Bench of this
Court in Devnath Yadav vs. State of U.P.
and three Others, which was a case where
an FIR under Section 2/3/5 of the PDPP Act,
in respect of encroachment over the Gaon
Sabha land, had been sought to be
challenged. The Division Bench upon
considering the legal position held that the
judgment in the case of Munshi Lal and
Another was distinguishable and made the
following observations :-

"in the case of Munshi Lal
(supra), we find that, proceeded on the
premise that Prevention of Damage to
620 INDIAN LAW REPORTS ALLAHABAD SERIES
Public Property Act, 1984 was enacted to
curb vandalism and damage to pubic
property.

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."

18. Now coming to yet another aspect
of the issue, learned counsel for the
applicants in order to buttress their
contention have drawn attention of the Court
to the provisions of Section 67 of the U.P.
Revenue Code which speaks about the
power
to
prevent
damages,
misappropriation and wrongful occupation
of Gram Panchayat property:-

(i) Where any property entrusted
or deemed to be entrusted under the
provisions of this Code to a Gram
Panchayat or other local authority is
damaged or misappropriated, or where any
Gram Panchayat or other authority is
entitled to take possession of any land under
the provisions of this Code and such land is
occupied otherwise than in accordance with
the said provisions, the Bhumi Prabandhak
Samiti or other authority or the Lekhpal
concerned, as the case may be, shall inform
the Assistant Collector concerned in the
manner prescribed.

(ii) Where from the information
received under sub-section (i) or otherwise,
the Assistant Collector is satisfied that any
property referred to in sub-section (i) has
been damaged or misappropriated, or any
person is in occupation of any land referred
to in that sub-section in contravention of the
provisions of this Code, he shall issue notice
to the person concerned to show cause why
compensation
for
damage,
misappropriation or wrongful occupation
not exceeding the amount specified in the
notice be not recovered from him and why
he should not be evicted from such land.

(iii) If the person to whom a notice
has been issued under sub-section (ii) fails
to show cause within the time specified in
the notice or within such extended time as
the Assistant Collector may allow in this
behalf, or if the cause shown is found to be
insufficient, the Assistant Collector may
direct that such person shall be evicted from
the land, and may, for that purpose, use or
cause to be used such force as may be
necessary, and may direct that the amount
of
compensation
for
damage
or
misappropriation of the property or for
wrongful occupation as the case may be, be
recovered from such person as arrears of
land revenue.

(iv) If the Assistant Collector is of
opinion that the person showing cause is not
guilty
of
causing
the
damage
or
misappropriation or wrongful occupation
referred to in the notice under sub-section
(ii), he shall discharge the notice.

(v) Any person aggrieved by an
order of the Assistant Collector under Subsection (iii) or Sub-Section (iv), may within
thirty days from the date of such order,
prefer an appeal to the Collector.

(vi)
Notwithstanding
anything
contained in any other provisions of this
Code, and subject to the provisions of this
section every order of the Sub-Divisional
Officer under this section shall, subject to
the provisions of sub-section (5) be final.

(vii) The procedure to be followed
in any action taken under this section shall
be such as may be prescribed.

Explanation.- For the purposes of
this section, the word "land" shall include
the trees and building standing thereon."
5 All. Jitendra Vs. State of U.P. & Anr.
621

19. Further, under Rule 67(1) of U.P.
Revenue Code, 2016, it is incumbent upon
the Assistant Collector to make an inquiry as
he deems proper and obtain further
information regarding the following issues :

(a) full description of damage or
misappropriation caused or the wrongful
occupation made with details of village, plot
number, area, boundary, property damaged
or misappropriated and market value
thereof;

(b) full address along with
parentage of the person responsible for such
damage, misappropriation or wrongful
occupation;

(c) period of wrongful occupation,
damage or misappropriation and class of
soil of the plots involved;

(d) value of the property damaged
or misappropriated calculated at the circle
rate fixed by the Collector and the amount
sought to be recovered as damages."

20. Thus, from the above it is clear that
as per the U.P. Revenue Code, it is the
Assistant Collector of the area who is the
authority concerned to act a pivotal role in
demarcation and holding and declaring the
land in dispute is encroached by the
applicants. The Investigating Officer of
criminal cases is not even remotedly
connected to conduct this exercise. The
entire procedure has been laid down in
Section 67(2) that only after getting a reply
from the alleged encroacher, the Assistant
Commissioner/Sub Divisional Officer has to
pass an order giving reasons for not
exceeding the explanation, if so offered by
the person concerned. The eviction from the
land in dispute can only be recorded after
disposal of the explanation offered by the
person concerned keeping in line with the
cardinal principle of natural justice by
passing a well reasoned and speaking order
while disposing of the said explanation. The
Act is itself contained the amount of
compensation
of
damage
or
misappropriation of the property or for
wrongful occupation, as the case may be and
may be recovered from such person as
arrears of land revenue. Section 210 of the
Revenue Code, 2006 confers supervisory
power on the Board or the Commissioner to
call for the record of any proceeding decided
by the subordinate revenue court 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 or
proceeding.

21. A careful reading of the provisions
of the Revenue Code, 2006, thus, makes it
clear that the proceeding for causing damage
to the public property can be undertaken
against any person who is in wrongful
occupation of the same or causes damage or
misappropriations to the said property. The
nature of eviction proceeding under Section
67 of the Revenue Code, 2006, is, however,
summary in nature. The rights of the parties
claimed, if gives rise to a dispute requiring
adjudication on the questions of fact, a suit
for declaration has to be instituted against
such person. The 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. In case of institution
of such a suit, a temporary injunction may
be granted by the Court concerned to
prevent wastage, damage or alienation of the
suit property. The Revenue Code, 2006 is a
Special enactment providing for the law
relating to the 'land' defined under Section
4(14) of the Code.

22. Thus, this Court comes to the
conclusion that if a person is using public
property for a temporary period without
causing damage or altering its nature or
622 INDIAN LAW REPORTS ALLAHABAD SERIES
structure or and remove after the notice
serve,
the
temporary
nature
of
the
occupation may suggest that there was no
intention to unlawfully grab public property
related to the prevention of damage to public
property Act. Such laws typically aim to
prevent intentional or negligent harm to
public assets or resources. As long as the use
is temporary, non-destructive, and does not
pose any risk to the property or public
safety, its may not to be considered a
violation of law related to the prevention of
damage to public property.

23. The court is explaining that the
Prevention of Damage to Public Property
(PDPP) Act, 1984, only applies to situations
where public property is damaged or
destroyed
during
riots
or
public
demonstrations. This means if there's damage
to things like government buildings or
infrastructure during these events, the PDPP
Act can be used to address it. So, if there's no
actual damage or loss related to Gram Sabha
land or any other village land due to illegal
encroachment by someone living in the village
or holding land there temporarily, without
causing damage or decreasing the land's value,
then the PDPP Act wouldn't be applicable. In
essence, if someone occupies land unlawfully
but doesn't cause any harm or decrease in
value to the land, the PDPP Act doesn't come
into play. This means that the Act is primarily
concerned with instances where there is actual
damage to public property or where the value
of the property is diminished due to unlawful
activities.

24. Thus, prima facie it appears that the
learned trial court has failed to appreciate the
materials available on record and has committed
manifest illegality while passing the impugned
order while rejecting the discharge application
and the same is passed without considering the
evidence produced by the applicants, which is
unsustainable in the eyes of law. Thus, this Court
allow this application under Section 482 Cr.P.C.
and quash the order dated 16.05.2023 passed by
Learned
Additional
Civil
Judge
(C.D.)
Fast/ACJM. Ambedkar Nagar in Criminal Mise.
Case No. 1223/2023 vide Crime No. 12/2020,
U/s 2/3 of Prevention of Damage to Public
Property Act, Police Station Maharuwa, District-
Ambedkar Nagar as well as further proceeding
is also quashed.

25. Accordingly, this application under
Section 482 Cr.P.C. is allowed and the
impugned order dated 16.05.2023 passed by
Learned
Additional
Civil
Judge
(C.D.)
Fast/ACJM. Ambedkar Nagar in Criminal Mise.
Case No. 1223/2023 vide Crime No. 12/2020,
U/s 2/3 of Prevention of Damage to Public
Property Act, Police Station Maharuwa, District-
Ambedkar Nagar as well as entire criminal
proceedings of Criminal Mise. Case No.
1223/2023 vide Crime No. 12/2020, U/s 2/3 of
Prevention of Damage to Public Property Act,
Police Station Maharuwa, District- Ambedkar
Nagar, pending before the court of Additional
Civil Judge (C.D.) Fast/ACJM. Ambedkar
Nagar are hereby quashed.

26. Let a copy of this judgment and order
be sent to the trial court for necessary
compliance.
----------
(2024) 5 ILRA 622
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.05.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482. No. 14197 of 2024

Rakesh Upadhyay ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties