# Mohammad Waseem v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 913
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-11
- **Case number:** Application U/S 482. No. 2042 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-waseem-v-state-of-u-p-anr-51702
- **Pages:** 5

## Headnote

Criminal Law - Prevention of Damage to
Public Property Act, 1984 - Section 2/3 -
As regards submission of counsel for
applicant that co-accused granted interim
relief by order dated 09.01.2024 in Munshi
Lal & Anr. (infra), it is sufficient to observe
that grant of interim relief by coordinate
Bench, based on judgment not holding as
good law, cannot persuade Court from
examining merits of present application -
On consideration of facts and law laid
down, it emerges that Lekhpal, in FIR,
alleged that co-accused Aqueel Ahmad @
Beeka had taken into possession of
government land earmarked as chakroad
and nali, and that applicant, proprietor of
Sherehind Infracon Pvt. Ltd., was carving
out residential plots thereon, including on
government
land
-
In
these
circumstances, case for prosecution of
914 INDIAN LAW REPORTS ALLAHABAD SERIES
application u/s 2/3 of Prevention of
Damage to Public Property Act, 1984 is
made out -
Application lacks merit,
dismissed. (Para 12, 13)

Application Dismissed. (E-13)

List of Cases cited:

## Text

3 All. Mohammad Waseem Vs. State of U.P. & Anr.
913

(5) Where the allegations made in
the FIR or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach a
just conclusion that there is sufficient
ground for proceeding against the accused.

(6) Where there is an express
legal bar engrafted in any of the provisions
of the Code or the concerned Act (under
which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned
Act,
providing
efficacious
redress for the grievance of the aggrieved
party.

(7) Where a criminal proceeding
is manifestly attended with mala fide
and/or where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge."

19. The present case falls within the
categories of (1) and (3) as from the
allegations levelled in the F.I.R. and the
material collected during investigation, no
case of abetment of suicide is made out
against the applicant.

20. In these circumstances, the
continuance
of
criminal
proceedings
against the applicant would not be in the
interest
of
justice.
Accordingly,
the
application is allowed and the order dated
07.06.2023
passed
by
the
Special
Additional Chief Judicial Magistrate, C.B.I.
(A.P.), Lucknow in Criminal Case No.
64083 of 2023 (State Vs. Romit Soni) and
the charge sheet dated 03.06.2022 arising
out of Case Crime No. 085 of 2021 under
Section 306 I.P.C, P.S Mahangar, District
Lucknow and the order dated 15.02.2024
passed by the learned Additional District
and Session Judge, Court No.15, Lucknow
in Session Trial No. 170 of 2024 (State of
U.P. Vs. Romit Soni), arising out of Case
rime No. 85 of 2021 under Section 306
I.P.C, P.S Mahangar, District Lucknow
North (Commissionerate Lucknow) are
hereby quashed and the applicant stands
discharged.
----------
(2024) 3 ILRA 913
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.03.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482. No. 2042 of 2024

Mohammad Waseem ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Amar Singh

Counsel for the Respondents:
G.A.

Criminal Law - Prevention of Damage to
Public Property Act, 1984 - Section 2/3 -
As regards submission of counsel for
applicant that co-accused granted interim
relief by order dated 09.01.2024 in Munshi
Lal & Anr. (infra), it is sufficient to observe
that grant of interim relief by coordinate
Bench, based on judgment not holding as
good law, cannot persuade Court from
examining merits of present application -
On consideration of facts and law laid
down, it emerges that Lekhpal, in FIR,
alleged that co-accused Aqueel Ahmad @
Beeka had taken into possession of
government land earmarked as chakroad
and nali, and that applicant, proprietor of
Sherehind Infracon Pvt. Ltd., was carving
out residential plots thereon, including on
government
land
-
In
these
circumstances, case for prosecution of
914 INDIAN LAW REPORTS ALLAHABAD SERIES
application u/s 2/3 of Prevention of
Damage to Public Property Act, 1984 is
made out -
Application lacks merit,
dismissed. (Para 12, 13)

Application Dismissed. (E-13)

List of Cases cited:

1. Munshi Lal & Anr Vs St. of U.P. & Anr,
Application u/s 482 No.9964 of 2020 decided on
06.08.2020

2. Devnath Yadav Vs St. of U.P. & ors., Criminal
Misc Writ Petition No.1131 of 2021 decided on
03.03.2021

3. Ramnarayan Pandey Vs St. of U.P.: 2023
(125) ACC 224

(Delivered by 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
3 All. Mohammad Waseem Vs. State of U.P. & Anr.
915
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
916 INDIAN LAW REPORTS ALLAHABAD SERIES
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 coaccused 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
3 All. Sitaram & Ors. Vs. State of U.P. & Anr.
917
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.
----------
(2024) 3 ILRA 917
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.03.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482. No. 2062 of 2024

Sitaram & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Jalaj Kumar Gupta

Counsel for the Opposite Parties:
G.A.

आपराकिि कवकि : र्ारतीय दंि संकहता, 1860 - िारा 323,
506, 325 - दंि प्रकक्रया संकहता, 1973 - िारा 156(3) -
आपराकिि िायगवाही िे कवरुद्ध - वैिता - कवपक्षी सं. 2 िे कदिांि
22.10.2018 िो िारा 156(3) दं0प्र0सं0 िे अंतर्गत प्राथगिा
पत्र देिर िहा कि कदिांि 24.09.2018 िो िब वह अपिे मुिदमे
िी पैरवी िरिे वापस लौट रहा था, रात 9:30 बिे रास्ट्ते में सर्ी
अकर्युक्तर्ण िे उसिो मारा-पीटा, र्ाकलयााँ दी और िाि से मारिे िी
िमिी दी तथा प्राथी सं. 3 िे उसिी िेब से रु०1220/- िबरि
कििाल कलए - प्राथगिा पत्र िो पररवाद रूप में पंिीिृत किया र्या -
कवपक्षी सं. 2 िे िारा 200 दं.प्र.सं. िे अंतर्गत कदए र्ए बयाि में
आरोपों िा समथगि िरते हुए बताया कि प्राथी सं. 3 िे साथ मारपीट से
उसिा बायााँ हाथ टूट र्या था - चक्षुदशी साक्षी िे िारा 202 दं.प्र.सं.
िे अंतर्गत अपिे बयाि दिग िरािर घटिा िी पुकष्ट िी - प्राथी िे
अकिवक्ता िे तिग कदया कि कवपक्षी सं. 2 द्वारा दायर वतगमाि पररवाद
प्रकतशोिवश प्रस्ट्तुत है, क्योंकि पूवग में प्राथी सं. 2 द्वारा दायर पररवाद में
ए.सी.िे.एम. िे कदिांि 27.07.2017 िो कवपक्षी सं. 2 व उसिे
कपता िो िारा 323, 498ि र्ा.दं.सं. एवं 3/4 दहेि प्रकतषेि
अकिकियम िे आरोपों पर कवचारण हेतु आहूत किया था - अकर्कििागररत,
पत्रावली िे अवलोिि से स्ट्पष्ट है कि कवचारण न्यायालय िे िारा 202
दं०प्र०सं० िे अन्तर्गत र्वाहों िे बयाि अंकित िरिे प्राथगि पत्र िो
कवचारण हेतु आहूत िरिे िा किणगय कलया है - र्वाहों िे बयाि अंकित
िरिा िारा 202 दं०प्र०सं० िे अन्तर्गत ही िी र्ई िााँच िी िायगवाही है
और आलोच्य आदेश में इस आिार पर िोई त्रुकट िहीं है कि कवचारण
न्यायालय िे िारा 202 दं०प्र०सं० िे अन्तर्गत िााँच िहीं िी है - िारा
156(3) दं.प्र.सं. िे अंतर्गत पररवाद; मारपीट, र्ाली-र्लौि, िमिी
व िि िी िबरि वसूली िा आरोप हैं, िारा 200 व 202 दं.प्र.सं.
िे बयािों से आरोप िा समथगि होता हैं - प्रकतशोि िा तिग अस्ट्वीिार -
कवचारण योग्य मामला बिता है, िायगवाही िो किरस्ट्त िरिे िा आिार
िहीं। (पैरा 3 से 5, 12, 16)

आवेदि किरस्ट्त I (E-13)

प्रोद्धृत मामलों िी सूची:

1. कृष्ण लाल चावला िथा अन्य बनाम उिर प्रिेर्श राज्य िथा एक अन्य
2021 5 एस.सी.सी. 435

2. ववजय िानुका आवि बनाम नजीमा मोहिाज (2014) 14 एस.सी.सी.
638

3. केन्रीय जाांच ब्यरो बनाम आयान वसांह आवि, 2023 एसएससी ऑनलाइन
एससी 379

4. राजीव कौरव बनाम बाई साहब िथा अन्य, (2020) 3 एसएससी
317
(Delivered by Hon'ble Subhash Vidyarthi,
J.)

1. प्रार्थी के विद्िान अधििक्ता श्री
जलज कुमार गुप्ता तर्था राज्य सरकार के
विद्िान अधििक्ता श्री पुनीत कुमार यादि
को सुना तर्था पत्रािली का अिलोकन
ककया।

2. िारा 482 दण्ड प्रकिया सिंहहता के
अन्तगगत प्रस्तुत इस प्रार्थगना पत्र द्िारा