# Munshi Lal & Anr v. State of U.P. & Anr

- **Citation:** (2020) 10 ILRA 362
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-08-06
- **Case number:** Application U/S 482 No. 9964 of 2020
- **Bench:** Mrs. Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munshi-lal-anr-v-state-of-u-p-anr-45243
- **Pages:** 7

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973-Section
482
-
Indian
Penal
Code,1862-Section
447
&
Prevention of Damage to Public Property
Act,1984-Section
2/3-quashing
of
-
chargesheet-prosecution failed to prove
that the entry or unlawful occupation with
an intent to intimidate, insult or annoy the
person in possession-the conviction u/s
447 IPC cannot be sustained nor the
damage can be imposed u/s 2/3 of the
P.D.P.P.
Act,
184-criminal
proceeding
initiated against the applicant is abuse of
process of law.(Para 3 to 19)

B. Criminal Law - Prevention of Damage to
Public Property Act,1984 - Is confined to
the destruction or damage of public
property during the course of riots,bundh,
hartal or public commotion. The said
provision cannot be invoked for lodging
the criminal complaint or FIR 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 question as
the
procedure
provided
in
Revenue
Code,2006

for
undertaking
the
proceedings regarding land in dispute 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.(Para 7 to 18)

The application is allowed. (E-6)

List of Cases Cited:-

## Text

362 INDIAN LAW REPORTS ALLAHABAD SERIES
Mazdoor
Panchayat12
and
P.K.
Palanisamy vs N.Arumugham13)

21. The court below was justified in
rejecting the application for the reason that
the witness sought to be recalled was not
essential to arrive at a just decision of the
case. The issue of ''non application of mind'
by the sanctioning authority is not germane
to the issue involved. It is not being
disputed by the applicant that PW-1 is not
the competent authority to accord sanction
for prosecution and applicant is not a
government servant. The sanction is
referable
to
Section
19,
however,
inadvertently sanctioned under Clause (a),
instead of Clause (c) of Section 19(1) of
Prevention of Corruption Act. No further
clarification is required to be thrown upon
the sanction order by PW-1 in the backdrop
of his deposition that he is competent and
had accorded the sanction to prosecute the
applicant.

22. Learned counsel for the applicant
failed to point out any illegality, infirmity
or jurisdictional error in the impugned
order.

23. The application being devoid of
merit is accordingly dismissed.
----------

(2020)10ILR A362
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2020

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.

Application U/S 482 No. 9964 of 2020

Munshi Lal & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Rakesh Kumar

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure,1973-Section
482
-
Indian
Penal
Code,1862-Section
447
&
Prevention of Damage to Public Property
Act,1984-Section
2/3-quashing
of
-
chargesheet-prosecution failed to prove
that the entry or unlawful occupation with
an intent to intimidate, insult or annoy the
person in possession-the conviction u/s
447 IPC cannot be sustained nor the
damage can be imposed u/s 2/3 of the
P.D.P.P.
Act,
184-criminal
proceeding
initiated against the applicant is abuse of
process of law.(Para 3 to 19)

B. Criminal Law - Prevention of Damage to
Public Property Act,1984 - Is confined to
the destruction or damage of public
property during the course of riots,bundh,
hartal or public commotion. The said
provision cannot be invoked for lodging
the criminal complaint or FIR 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 question as
the
procedure
provided
in
Revenue
Code,2006

for
undertaking
the
proceedings regarding land in dispute 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.(Para 7 to 18)

The application is allowed. (E-6)

List of Cases Cited:-

1. In Re. Destruction of Public & Pvt. Properties,
In Re. Vs St. Of A.P. & ors., (2009) 5 SCC 212

2. Kodungallur Film Society & anr. Vs U.O.I. &
ors., (2018) 10 SCC 713
10 All. Munshi Lal & Anr. Vs. State of U.P. & Anr.
363
(Delivered by Hon'ble Mrs. Sunita Agarwal, J.)

1. Heard Sri Rakesh Kumar learned
Advocate for the applicants and learned
A.G.A for the State respondents.

2. By means of the present
application,
the
applicants
seek
for
quashing of the charge sheet no. 1 of 2018
dated 20.1.2018 submitted in Case Crime
No. 850 of 2017 as also the order dated
14.10.2019 in Criminal Case No. 2418 of
2019 (State vs. Kastoori Singh and others),
whereby the Judicial Magistrate, Puwaya,
Shahjahanpur has directed for appearance
of the accused-applicants before him. The
first information report dated 19.8.2017
namely Case Crime No. 850 of 2017 was
lodged by the Lekhpal of Village Hardayal
Kucha, Puwaya, Tehsil Puwaya, District
Shahjahanpur
alleging
commission
of
offence under Section 447 I.P.C. and
Section 2/3 of the Prevention of Damage to
Public Property Act, 1984 (hereinafter
referred as to "the P.D.P.P. Act, 1984").
The allegations in the F.I.R. are that the
persons named therein including the
applicants herein namely Munshi Lal and
Kastoori Singh, both sons of Ganga Ram,
resident of Village Diuhana, Police Station
Banda,
District
Shahjahanpur
had
encroached plot no. 179 area 0.890
hectares, which is recorded as Banjar in the
revenue records. The applicants had, thus,
caused damage and loss to the public
property which is the land vested in the
Gram Sabha.

3. Seeking for quashing of the charge
sheet, the main submission of learned
counsel for the applicants is that the
lodging of the first information report
taking aid of provisions of the P.D.P.P.
Act, 1984 is nothing but an abuse of
process of the law, inasmuch as, the said
provisions cannot be invoked to lodge a
criminal case on the allegations of damage
or loss caused to the Gram Sabha land. The
Magistrate has acted illegally and without
application of judicial mind in taking
cognizance on the charge sheet submitted
under Section 2/3 of the P.D.P.P. Act,
1984.

4. As far as the allegations of
commission of offence of criminal trespass
under Section 447 I.P.C. is concerned, it is
contended that no such offence can be
made out from the allegations in the first
information report as even the date of entry
of the applicants over the Gram Sabha land
has not been indicated. Even otherwise, the
names of the applicants over the plot in
question namely Plot No. 179 area 0.3800
hectares has been recorded in the revenue
records
pursuant
to
an
order dated
31.12.2013 under "Pa-Ka 11 Kha" being
their ancestral property.

5. In any case, the question as to
whether the land in dispute belongs to the
applicants or they had illegally encroached
upon the land vested in Gram Sabha,
allegedly recorded as Banjar, can only be
adjudicated by the revenue Court. The
proper proceeding for eviction of the
unauthorized occupant can be undertaken
under Section 67 of the Revenue Code,
2006. The short cut procedure adopted by
the Lekhpal of the village concerned is
nothing but with a view to harass the
applicants.

6. Having heard the learned counsel
for the applicants and perused the record.
At the out set, we may note that complete
mechanism has been provided under
Section 67 of the Revenue Code, 2006
empowering the Gram Sabha or any other
authority to take possession of any land
364 INDIAN LAW REPORTS ALLAHABAD SERIES
under the provisions of the Revenue Code,
where such property is entrusted or deemed
to be entrusted to a Gram Sabha or other
local
authority
and
is
damaged
or
misappropriated by anyone. The SubDivisional Officer of the concerned SubDivision is empowered to take action on
the information received from the Bhumi
Prabandhak Samiti or other authority or the
Lekhpal concerned about such illegal
occupation or damage or misappropriation
of the Gram Sabha Land. In case, any
person is found in occupation of any such
land in contravention of the provisions of
the 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 title or the nature of
occupation over the land in question. In
that case, the Sub-Divisional Officer has to
pass an order giving reasons for not
accepting the explanation, if so, offered by
the person concerned. The eviction from
the land can only be ordered after disposal
of the explanation offered by the person
concerned keeping in line with the
principles of natural justice by passing a
reasoned and speaking order which shall
disclose the application of mind by the
Officer. The amount of compensation for
damage or misappropriation of the property
or for wrongful occupation, as the case may
be, 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 the SubDivisional Officer under sub-section (3) or
sub-section (4) of Section 67 may prefer an
appeal to the Collector within thirty days
from the date of such order. The procedure
for undertaking the proceedings 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 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.

Chapter XV of the Revenue
Code,
2006
talks
of
penalties
for
encroachment and provides that any person
who encroaches upon or causes any
obstruction to the use of any public land
(including chak road), path or common
land of the village, shall be liable to a fine
minimum Rs. 500/- and not exceeding Rs.
2,000/- and in case of his repetitive act, the
Sub-Divisional Officer or the Tehsildar
may require him to execute a personal bond
for a sum not exceeding of Rs. 5,000/-.

9. 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
10 All. Munshi Lal & Anr. Vs. State of U.P. & Anr.
365
wrongful occupation of the same or causes
damage or misappropriation 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.

10. 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 the parties over the land in dispute
as the said determination can be done only
by the revenue Court.

11. 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 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 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 pubic property by fire or
explosive substance. The P.D.P.P. Act,
1984 is, thus, a Special Act enacted to
punish for the offence committed under
Sections 3 and 4 of the said Act by doing
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. The
"Mischief" has been defined under Section
2(a) of the P.D.P.P. Act, 1984 having the
same meaning as in Section 425 of the
Indian Penal Code (45 of 1860). Section 6
is the saving clause which says that the Act'
1984 covers the offence committed under it
and the provisions of it are in addition to
any other law which provides for any
proceeding
(whether
by
way
of
investigation or otherwise) which may be
instituted or taken against the offender,
apart from this Act. Special provisions with
regard to disposal of a prayer for bail made
by a person accused of commission of
offence under the Act' 1984 has been
provided under Section 5 of the P.D.P.P.
Act, 1984.

The provisions oblige a person
found guilty of commission of offence to
366 INDIAN LAW REPORTS ALLAHABAD SERIES
pay the damage or loss caused to the public
property. This Act, thus, covers the specific
area of damage or loss or destruction of
public property and recovery of such
damages from the person(s) who is/are
found guilty of such damage during the
course of any public demonstration in the
name of agitations, bandhs, hartals and the
like.

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.

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.

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.

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.

13. In compliance thereof, the State of
U.P. notified the "Uttar Pradesh Recovery
of 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.

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
10 All. Munshi Lal & Anr. Vs. State of U.P. & Anr.
367
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.

14. The first information report dated
19.8.2017 reporting an offence committed
under Section 2/3 of the P.D.P.P. Act, 1984
is nothing but an abuse of the process of
law.
The
concerned
Magistrate
has
committed a patent error of law in taking
cognizance of the alleged offence by
passing a cryptic order without application
of his independent mind. The charge sheet
and the cognizance order summoning the
applicants herein for alleged commission of
offence under Section 2/3 of the P.D.P.P.
Act, 1984 are, thus, liable to be quashed.

15. As far as the allegation of criminal
offence under Section 447 IPC to constitute
criminal trespass, the prosecution has to
prove and the Court has to return a finding on
the evidence that the trespass was committed
with one of the intents enumerated in Section
441 of the Indian Penal Code. The
prosecution has, thus, not only to allege but
also to prove that the entry or unlawful
occupation must be with an intent; (i) to
commit an offence; or (ii) to intimidate, insult
or annoy any person in possession of the
property". Every 'trespass' by itself is not
criminal. In absence of any such finding, the
conviction under Section 447 IPC cannot be
sustained. The offence under Section 447
I.P.C. though is cognizable but is also a
compoundable
offence
triable
by
any
Magistrate, trial of which has to be conducted
summarily. A charge under this section
should specifically state intent which is
alleged. The accused may lay a bonafide
claim and right in the land in question.
Although he may have no right to the land
but he cannot be convicted of criminal
trespass unless it is proved by the prosecution
that he did so with an intention to intimidate,
insult or annoy the person in possession or to
commit an offence. The complainant need
not be necessarily a person in actual physical
possession of the land in question on the date
of entry of the trespasser, i.e. the accused
person. He may be a person to whom the land
in question belonged or deemed to have been
vested. The person who actually owns the
land or property is the competent person to
lodge the complaint.

16. In the instant case, the allegations
in the F.I.R. are general and vague against
many persons with respect to different
nature of lands. So far as the applicants
herein both sons of Ganga Ram are
concerned, it is averred in the FIR that they
had encroached and damaged the public
property belonging to Gram Sabha. The
charge sheet does not disclose appreciation
of any particular material on record against
the applicants. The order of taking
cognizance passed by the Magistrate is a
non-speaking order. In this case, the
criminal action proposed against the
applicants, thus, is a result of nonapplication of judicial mind.

17. Noteworthy is that the allegations
against the applicants herein are of
encroachment on 'Banjar' land and not on a
'public
utility
land',
which
can
be
regularized if a proceeding for eviction is
instituted against the applicants under the
Revenue Code, 2006 as they may take a
defence of being landless labourers of the
village concerned, i.e. of being eligible
persons
for
allotment
of
land
or
reqularization
of
their
occupation/possession.

18. In any case, determination on the
disputed
questions
of
facts,
in
an
368 INDIAN LAW REPORTS ALLAHABAD SERIES
appropriate proceeding before the Revenue
Court is necessary. Neither the damage can
be imposed for alleged 'Mischief' by taking
criminal action under Section 2/3 of the
P.D.P.P. Act, 1984 nor any offence of
'criminal trespass' under Section 447 of the
Indian Penal Code can be said to have been
prima facie made out against the applicants
herein. The criminal proceedings initiated
against the applicants pursuant to the F.I.R.
namely Case Crime No. 0850 of 2017,
Police
Station
Banda,
District
Shahjahanpur cannot but be said to be an
abuse of the process of law or the Court.
The cognizance order dated 14.10.2019 in
Criminal Case No. 2418 of 2019 (State vs.
Kastoori Singh and others) has been passed
in complete ignorance of law. The
continuation of criminal proceedings, in the
considered opinion of the Court, being an
abuse of process of the Court, ends of the
justice requires that the said proceedings be
quashed.

19. Invoking inherent powers under
Section 482 Cr.P.C. of the High Court, the
entire criminal proceedings of Case Crime
No. 850 of 2017, Police Station Banda,
District Shahjahanpur is hereby quashed.

The application stands allowed.
----------
(2020)10ILR A368
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.09.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 11176 of 2020

Ankit Prasad & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Sri Alok Kumar Singh

Counsel for the Respondents:
A.G.A., Sri Jawahir Yadav

A. Criminal Law - Code of Criminal
Procedure,1973-Section
482
-
Indian
Penal Code,1862-Sections 323, 452, 504,
506-quashing
of-summoning
orderstatements of complainant and witnesses
corroborated the contention with regard
to
criminal
trespass-At
the
time
of
summoning, the Magistrate is not to make
analytical analysis of evidence-only a
prima facie case for proceeding further is
there or not is to be seen-one witness was
not examined, is of no relevance -the
complainant
and
injured
have
been
examined-magistrate is not required to
examine each and every witness at the
juncture of summoning. (Para 5)

B. The court in exercise of its inherent
jurisdiction u/s 482 CrPC, is not expected
to meticulously analyse the facts and
evidence as it is within the domain of trial
court. (Para 6)

The application is dismissed. (E-6)

List of Cases Cited:-

1. St. Of A.P. Vs Gaurishetty Mahesh, JT (2010)
6 SC 588: (2010) 6 SCALE 767: 2010 Cr. LJ
3844

2. Hamida Vs Rashid, (2008) 1 SCC 474

3. Monica Kumar Vs St. Of U.P.,(2008) 8 SCC
781

4. Popular Muthiah Vs St.,Rept. By Inspector of
Police,(2006) 7 SCC 296

5. Dhanlakshmi Vs R. Prasana Kumar,(1990) Cr.
LJ 320 (DB): AIR (1990) SC 494

6. St. Of Bih. Vs Murad Ali Khan,(1989) Cr. LJ
1005: AIR (1989) SC 1

7. Amrawati & Anr. Vs St. Of U.P.,(2004) 57 ALR
290