# Prabhakant & Anr v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 7 ILRA 395
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-13
- **Case number:** Application u/s 482 No. 398 of 2023
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prabhakant-anr-v-state-of-u-p-anr-opp-parties-50322
- **Pages:** 10

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections - 161, 173(2) & 482 - UP
Revenue Code, 2006 - Sections 4(14), 67,
67(1), 67(2), 145 & 210 - Prevention of
Damages to Public Property Act, 1984 -
Sections 2(b), 3, 3(2)A, 4, 5 & 6:-
Application U/s 482 - challenging the entire
criminal proceeding as well as the charge-sheet
& impugned summoning orders - Encroachment
over Govt. lands - FIR - Investigation - chargesheet - Whether the charge-sheeted accused
persons could be branded as they have
committed
the
wrongful
occupation
and
possession or mischief by encroaching upon
land belonging to Central Govt./St. Govt. or any
other local authorities or its undertaking - court
finds that - taking into gravity of offence and its
nature in which there is no criminality as such
and the apt remedy would be to proceed
against erring so called encroacher u/s 67 of UP
Revenue Code and get the land in dispute
demarcated - it is the case exclusively falls
within domain of concerned revenue authority
to impose fine, if any, after taking whole
exercise as per the provisions of law - held, -
needles to mention on the previous occasions at
least a dozen of the cases of different Benches
of this Court in different proceedings have
condemned and deprecated this practice of
taking cognizance on a printed proforma, but it
seems that the concern Magistrate repeatedly in
utter defiance of the directions of this Court are
still taking cognizance on a printed proforma
without applying their judicial mind - this is
wholly unacceptable - consequently, these
applications u/s 482 Cr.P.C. stands allowed - the
matter remanded back for fresh consideration
by the court concerned directions issued
accordingly. (Para - 19, 22, 23, 24)

Applications u/s 482 allowed. (E-11)

List of Cases cited:

## Text

7 All. Prabhakant & Anr. Vs. State of U.P. & Anr.
395
levy
of
tax/fees/charges
except
in
accordance with law and/or as provided
under
the
statute.
Therefore,
the
Development Authority can demand only
external development fees, stacking fees
and water fees at the time of sanctioning
the map and no other fees/charges can be
demanded by the Development Authority.

9. In view of the above, the demand
notice dated 30.5.2003, issued by the
Allahabad Development Authority so far as
it asks the petitioner to deposit fees and
charges other than external development
fees, stacking fees and water fees, is hereby
quashed and the notice, so far as it demands
external development fees, stacking fees
and water fees, is valid and the petitioner is
liable to pay the same.

10. Any deposit made by the
petitioner, under the heads for which the
demand notice is quashed by this Court,
shall be returned to the petitioner by the
Allahabad Development Authority with 6%
simple interest per annum within a period
of three months from today.

11. With the aforesaid observations,
the writ petition is allowed.
----------
(2023) 7 ILRA 395
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.07.2023

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Application u/s 482 No. 398 of 2023
and
Application u/s 482 No. 8168 of 2023

Prabhakant & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties
Counsel for the Applicants:
Sri Shailendra Kumar Tripathi, Sri Anujrag Dubey

Counsel for the Opp. Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections - 161, 173(2) & 482 - UP
Revenue Code, 2006 - Sections 4(14), 67,
67(1), 67(2), 145 & 210 - Prevention of
Damages to Public Property Act, 1984 -
Sections 2(b), 3, 3(2)A, 4, 5 & 6:-
Application U/s 482 - challenging the entire
criminal proceeding as well as the charge-sheet
& impugned summoning orders - Encroachment
over Govt. lands - FIR - Investigation - chargesheet - Whether the charge-sheeted accused
persons could be branded as they have
committed
the
wrongful
occupation
and
possession or mischief by encroaching upon
land belonging to Central Govt./St. Govt. or any
other local authorities or its undertaking - court
finds that - taking into gravity of offence and its
nature in which there is no criminality as such
and the apt remedy would be to proceed
against erring so called encroacher u/s 67 of UP
Revenue Code and get the land in dispute
demarcated - it is the case exclusively falls
within domain of concerned revenue authority
to impose fine, if any, after taking whole
exercise as per the provisions of law - held, -
needles to mention on the previous occasions at
least a dozen of the cases of different Benches
of this Court in different proceedings have
condemned and deprecated this practice of
taking cognizance on a printed proforma, but it
seems that the concern Magistrate repeatedly in
utter defiance of the directions of this Court are
still taking cognizance on a printed proforma
without applying their judicial mind - this is
wholly unacceptable - consequently, these
applications u/s 482 Cr.P.C. stands allowed - the
matter remanded back for fresh consideration
by the court concerned directions issued
accordingly. (Para - 19, 22, 23, 24)

Applications u/s 482 allowed. (E-11)

List of Cases cited:

1. In Re. Destruction of Public and Private
Properties, In Re. Vs St. of A.P. & ors.(2009 vol.
5 SCC 212),
396 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Kodungallur Film Society & anr.Vs U.O.I. &
ors.(2018 vol. 10 SCC 713),

3. Abdul Rashid Vs St. of UP, 2010 SCC online
Alld. 2819,

4. Bhushan Kumar Vs St. of (NCT of Delhi),
2012 vol. 5 SCC 424),

5. Sunil Bharti Mittal Vs C.B.I., AIR 2015 SC 923.

(Delivered by Hon'ble Rahul Chaturvedi, J.)

(1). In these two applications u/s 482
Cr.P.C. the petitioners are assailing the
legality
and
validity
of
summoning/cognizance orders passed by
the respective courts below summoning the
accused-applicants
u/s
3(2)A
of
the
Prevention of Damages to Public Property
Act, 1984. Since there is common legal
question involved in both the petitions that
cognizance orders passed by the respective
Magistrates are not sustainable in the eyes
of law as the same have been passed on a
printed proforma without applying its
judicial application of mind. Therefore,
under these circumstances, both these
petitions are being decided by this common
judgment.

(2). Heard S/Shri Anurag Dubey and
Nitin Sharma, learned counsel for the
respective
applicants;
S/Shri
Satendra
Tiwari, Faraz Kazmi and Ajay Kumar
Sharma, learned Additional Government
Advocates. Perused the entire record of the
case.

(3). To appreciate the controversy
involved it is imperative to give a bird's
eye view to the factual aspects of the issue
and respective proceedings.

(4). FACTS OF APPLICATION U/S
482 No.-398 of 2023 :

By means of the present application
the extraordinary powers of this Court is
being invoked seeking the quashing of
entire criminal proceeding of Case No.1588
of 2018 (State vs. Bhawarpal Singh and
others), charge sheet dated 20.6.2016,
arising out of Case Crime No.149 of 2016,
u/s 3(2)A of Prevention of Damages to
Public Property Act, Police Station Tirwa,
District Kannauj, pending in the Court of
Additional
Chief
Judicial
Magistrate,
Kannauj and summoning/cognizance order
dated 27.10.2018.

(5). Long and short of this case is that
the applicant along with other co-villagers
have allegedly encroached upon a land of
pond situated over Gata No.2029 (Mi)
having area 0.490 hectare. On this score an
F.I.R. was lodged for an unknown time and
date of the incident, by opposite party no.2
on 22.3.2016 at 16.50 hours against the
applicants and 21 others.

(a) After lodging of the F.I.R.,
investigating Officer of the case has visited
the place of incident and prepare a site
plan. In addition to this, the Investigating
Officer of the case has recorded the
statement of the then Village Pradhan on
21.4.2016 u/s 161 Cr.P.C. Investigating
Officer without holding in-depth probe into
the matter and without holding any proper
measurement of the land in dispute, in a
most cursory and perfunctory manner, has
submitted a report u/s 173(2) Cr.P.C. on
20.6.2016. After submission of report u/s
173(2) Cr.P.C., as per prevalent practice
now-a-days, the learned A.C.J.M., Kannauj
on a printed proforma, after filling in the
blanks,
on
27.10.2018
has
taken
cognizance of the offences u/s 3(2)A of the
Prevention of Damages to Public Property
Act, 1984 (for the sake of brevity
hereinafter referred to as 'PDPP Act'),
7 All. Prabhakant & Anr. Vs. State of U.P. & Anr.
397
against the applicants and others. It is
argued by the counsel for applicant that
there is total non-application of judicial
mind while taking cognizance of the
offence.

(b) It is interesting to point out here,
that the concerned Magistrate has not even
named the charge-sheeted accused persons
in his cognizance order and calling upon
them to face the criminal trial. It is argued
by learned counsel for the applicant, that it
is the height of total non application of
mind by the concerned Magistrate, who has
not even named the accused persons in the
cognizance order. It has been strenuously
submitted by learned counsel for the
applicant that through various judgments
this Court has time and again have
deprecated
this
practice
of
taking
cognizance on a printed proforma in a most
cursory and perfunctory fashion. Further
submission is that learned Magistrate ought
to have at least named the persons against
whom he is going to prosecute for the
alleged offence u/s 3(2)A of PDPP Act.
Since the way and manner in which the
cognizance was taken by the concerned
Magistrate, all the accused persons were
unaware that any such proceeding is
pending against them and only after
coming to know, off late all the accused
persons have contacted their local counsels
to inquire about the truthfulness of the
alleged cognizance order.

(6).
FACTS
OF
CRL.
MISC.
APPLICATION U/S 482 NO.8168 OF
2023:

In the instant 482 application, there are
as many as nine applicants, who are jointly
assailing the charge sheet No.406 of 2018
dated 03.09.2018 and entire proceeding of
Criminal Case No.8511 of 2022 (Sate vs.
Sajid and others), arising out of Case Crime
No.0432 of 2018, u/s 3 of the Prevention of
Damage to Public Property Act, 1984,
Police Station Kairana, District Shamli
along with cognizance and summoning
order dated 04.10.2018 passed by the Civil
Judge (S.D.)/Additional Chief Judicial
Magistrate, Shamli.

(a) The prosecution story in brief is
that one Baleshwar Das (Area Lekhpal) has
lodged an F.I.R. at Police Station Kairana,
District Shamli on 27.7.2018 which was
registered as Case Crime No.0432 of 2018
u/s 3 of the Prevention of Damage to Public
Property Act, 1984. From the F.I.R. it is
clear that it was registered as many as 11
named accused persons including the name
of Ashraf and Jamila, who died much prior
to lodging of the F.I.R. After lodging of the
F.I.R., the police have conducted a
superficial perfunctory investigation and
completed its homework after recording the
statements u/s 161 Cr.P.C. of the informant,
Jahid and Revenue Inspector Ashutosh
Kumar,
who
have
supported
the
prosecution story, as mentioned in the
F.I.R. that the named accused persons have
encroached upon a public dran passing
through Khata No.176 and chak road
passing through Khata No.177 and are
cultivating their crops over the said
encroached land. Despite of the fact that
they were warned by the Tehsildar to
remove the encroachment, they have
simply ignored the warning given by
Tehsildar, maintained their possession over
the property in question. The I.O. of the
case have visited the place of incident on
03.9.2018 and recorded that there was no
demarcation between the agricultural land
of the accused persons and the public drain
as well as chak road. From this, the
Investigating Officer has inferred that the
accused persons have encroached upon the
land and are tilling the same. This inference
398 INDIAN LAW REPORTS ALLAHABAD SERIES
is litarally unfounded and whimsical.
Though the accused persons have got their
agricultural land adjacent to the chak road
and public drain, but there is no line of
demarcation, therefore, it cannot be said
with
certainty
that
the
boundaries
demarcating the fields as well as chak road
might have been blurred and its identity
cannot be ascertained.

(b). It is contended by learned counsel
for the applicant that the Investigating
Officer of the case has got no mechanism to
demarcate the land and prima facie it seems
that accused persons have transgressed
their limits and encroached upon the land.
It is not expected from the I.O. that he
would make a physical measurement of the
land and get it demarcated. On this, learned
counsel for the applicant has argued that
the undercurrent of entire controversy is
purely a revenue dispute and no criminality
could be attached to it. But the Investigating
Officer of the case without ascertaining the
allegations of the F.I.R., on a demarcated line,
proceeded and submitted a charge sheet
against the applicants on 3.9.2018 u/s 3(2)A
of PDPP Act. Contention is that after
submission of charge sheet, the Additional
Chief Judicial Magistrate, Shamli again on a
printed proforma without mentioning that
under what section the cognizance has been
taken by him. This cognizance order was
passed on 04.10.2018 on a printed proforma
after filling in the blanks, clearly indicative of
the fact that there is total non application of
mind by the concerned Magistrate. This
practice has been condemned and deprecated
by the Hon'ble Apex Court as well as this
Court in a number of decisions, but it seems
that those decisions have got no value for the
concerned
Magistrate
and he
is
still
proceeding and taking cognizance in an old
fashion.

LEGAL DISCUSSION :

(7).

From
the
above
factual
background and the contentions advanced
by learned counsel for the applicants, the
following questions of law involved in the
present matter have cropped up for
consideration :

(i).
Whether
the
charge-sheeted
accused persons could be branded as they
have committed the wrongful occupation
and possession or mischief by encroaching
upon the land belonging to the Central
Government/State Government or any local
authority or corporation or institution
established by the Central, Provincial or
State Act or its undertaking.

(ii). Object and reasons of the
Prevention of Damages to Public Property
Act, 1984.

(iii) Section 3 of the Prevention of
Damages to Public Property Act, 1984
QUA Section 67 of the Uttar Pradesh
Revenue Code and Rules.

(iv) Whether the I.O. of the case is
empowered
to
hold
actual
physical
measurement over the land in question and
declare that the accused-applicants were the
real and actual encroachers of the land.

(v) Taking the allegations per se on the
face of the F.I.R., it could be rectified only
after
having
the
actual
physical
measurement of the land in dispute by a
competent authority.

(vi) Whether the concerned Magistrate
was justified in taking the cognizance of
the offences on a printed proforma by
filling in the blanks.

Let's examine these legal aspects of
the issue one by one.

(8). The allegations made in the F.I.R.
against the applicants are that they are in
wrongful occupation of the land in dispute
belonging to the local authority, cannot
7 All. Prabhakant & Anr. Vs. State of U.P. & Anr.
399
come within the realm of mischief or
wrongful occupation, till such time its
actual
physical
measurement
is
not
conducted by the authority concerned. Site
plan prepared by the Investigating officer is
only a narration of the fact that the
applicants are conducting their farming and
cultivating over the land in dispute, but the
Investigating Officer cannot decide it
unless and until actual demarcation is being
done by the competent revenue authority
after holding the exercise of measurement
and establishing its identity. In absence of
this vital link, it cannot be said with
certainty
that
charge-sheeted
accused
persons have swelled their limits and
encroached upon the land of others.

(9). The underline 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. Section
4 provides punishment for an act of
'Mischief' causing damage to public
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 or
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 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.

(10). 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
400 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

(11). 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 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.

(12). It was acknowledged in
Kodungallur
Film
Society
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.

(13). 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.

(14). 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
aGram
7 All. Prabhakant & Anr. Vs. State of U.P. & Anr.
401
Panchayator other local authority is
damaged or misappropriated, or where
anyGram Panchayator 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 theAssistant
Collectorconcerned
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
theAssistant Collectormay allow in this
behalf, or if the cause shown is found to be
insufficient,
theAssistant
Collectormay
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 theAssistant Collectoris 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 theAssistant Collectorunder Sub-section
(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."

(15). 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."
402 INDIAN LAW REPORTS ALLAHABAD SERIES

(16). 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,
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.

(17). 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.

(18). 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.

LEGALITY
OF
CRYPTIC/
SUMMONING ORDER ON A PRINTED
PROFORMA :

(19). In addition to above, learned
counsel for the applicants have drawn
attention of the Court to the impugned
summoning order whereby the concerned
Magistrate,
despite
of
the
repeated
directions of the Hon'ble Apex Court as
well as of this Court, have adhered to the
old fashion by taking the cognizance of
offences on a printed proforma. Needless to
mention here that on the previous occasion
at least a dozen of the cases of different
Benches
of
this
Court
in
different
proceedings
have
condemned
and
deprecated
this
practice
of
taking
7 All. Prabhakant & Anr. Vs. State of U.P. & Anr.
403
cognizance on a printed proforma, but it
seems that the concerned Magistrates
repeatedly
in
utter
defiance
of
the
directions of this Court are still taking
cognizance on a printed praforma without
applying their judicial mind. This is wholly
unacceptable and condemned in strong
term. The Session Judges of respective
sessions divisions are required to look into
the matter and issue an specific order that
the cognizance order must be speaking and
showing application of judicial mind.

(20). It was noted by Hon'ble Apex
Court in the case of Abdul Rashid vs. State
of U.P., 2010 SCC online Alld 2819,
wherein it has been held that the judicial
order cannot be allowed to be passed in a
mechanical fashion either by filling in the
blanks in a printed proforma or by affixing
a readymade seal etc. of the order on a
plain paper. Such tendency must be
deprecated and cannot be allowed to
perpetuate. This reflects not only lack of
judicial mind to the facts of the case but is
also against the settled judicial norms.

(21). Similarly in the case of Bhushan
Kumar vs. State (NCT of Delhi), 2012 5 SCC
424, wherein the Hon'ble Apex Court has
observed that Section 204 of the Code does
not mandate the Magistrate to explicitly state
the reasons for issuance of summons. It clearly
states that if in the opinion of a Magistrate
taking cognizance of an offence, there is
sufficient ground for proceeding, then the
summons may be issued. While explaining the
true import of expression "sufficient ground
for proceeding" the Hon'ble Apex Court in the
case of Sunil Bharti Mittal vs. Central Bureau
of Investigation, AIR 2015 sc 923 has held as
under :

"47. However, the words "sufficient
grounds for proceeding" appearing in the
Section are of immense importance. It is
these words which amply suggest that an
opinion is to be formed only after due
application of mind that there is sufficient
basis for proceeding against the said
accused and formation of such an opinion
is to be swtated in the order itself...."

(22). As mentioned above, taking into
account the gravity of offence and its
nature in which there is no criminality as
such and the apt remedy would be to
proceed against the erring so called
encroacher u/s 67 of the U.P. Revenue
Code and get the land in dispute
demarcated. It is the case exclusively falls
within the domain of concerned revenue
authority to impose the fine, if any, after
taking the whole exercise as per the
provisions of law contained u/s 67 of the
U.P. Revenue Code.

(23). Thus, after having heard the
arguments advanced by learned counsel for
the applicants and with the help of
guidelines and the law laid down by the
Hon'ble Apex Court in abovementioned
cases and also keeping in view the totality
of facts and circumstances of the case, I
have got no hesitation to allow these
applications u/s 482 Cr.P.C. and quash the
impugned summoning/cognizance orders as
well as proceedings challenged therein.
Accordingly,
the
impugned
summoning/cognizance
order
dated
27.10.2018 as well as entire criminal
proceeding of Case No.1588 of 2018 (State
vs. Bhawarpal Singh and others), charge
sheet dated 20.6.2016, arising out of Case
Crime No.149 of 2016, u/s 3(2)A of
Prevention of Damages to Public Property
Act, Police Station Tirwa, District Kannauj,
pending in the Court of Additional Chief
Judicial Magistrate, Kannauj and the
summoning/cognizance
order
dated
404 INDIAN LAW REPORTS ALLAHABAD SERIES
04.10.2018 passed by the Civil Judge
(S.D.)/Additional
Chief
Judicial
Magistrate, Shamli as well as entire
proceeding of Criminal Case No.8511 of
2022 (Sate vs. Sajid and others), arising out
of charge sheet No.406 of 2018 dated
03.09.2018 in Case Crime No.0432 of
2018, u/s 3 of the Prevention of Damage to
Public Property Act, 1984, Police Station
Kairana,
District
Shamli
are
hereby
QUASHED.

(24). The instant applications u/s 482
Cr.P.C. stand allowed. The matter is
remanded back for fresh consideration by
the court concerned, after strictly adhering
to the observations of this order, within
next FOUR MONTHS.
----------
(2023) 7 ILRA 404
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.07.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application u/s 482 No. 1968 of 2018

Kazim Mehndi ...Applicant
Versus
Zubedia Begum & Anr. ...Opp. Parties

Counsel for the Applicant:
Vijay Kumar Pandey

Counsel for the Opp. Parties:
G.A., Anil Kumar Sharma, Arvind Kumar, Bajhul
Siddiqui, Mohammad Abbas Zaidi, Shivendra
Pratap Singh

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 200, 202 & 482 -
UP Zamindari Abolition and Land Reforms
Act, 1950 - Sections 210, 171 & 172: -
Application U/s 482 - challenging the criminal
proceeding initiated against the applicant -
complaint - allegation of submission of forged
and fabricated death certificate - during
proceeding of a dispute which is purely civil in
nature and several set of litigations are pending
between the parties - court finds that, - prima
facie there seems to be civil dispute in between
the parties but so far as getting prepared the
death certificate is concern, it was prepared
wilfully and dishonestly, therefor the same was
cancelled - held, - it is trite law that the
testimony of the witnesses cannot be examined
by this court and deciding the fate of the trial
while giving finding that those testimonies are
baseless is not proper at this stage and further
the criminal and civil proceedings can go on as
there are different consequences of the same -
hence, court finds no merit in this case -
accordingly, application is hereby dismissed.
(Para - 21, 22, 23, 24)

Application u/s 482 dismissed. (E-11)

List of Cases cited:

1. Devendra & ors.Vs St. of UP & anr.(2009 vol.
7 SCC 495),

2. Inder Mohand Goswami & anr.Vs St. of
Uttarakhand & ors.(2007 col. 12 SCC 1),

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Vijay Kumar Pandey,
learned
counsel
for
the
applicant-
petitioner, Sri Anil Kumar Sharma and
Bajhul Quamar Siddiqui for opposite
parties, Sri Nirmal Kumar Pandey, learned
A.G.A. for the State and perused the
material placed on record.

2. Instant application has been filed
with prayer to quash the order dated
06.03.2018 passed by Judicial Magistrate,
Court No.2, Sitapur in a Criminal Case No.
6395 of 2017, Smt. Zubeda Begum, versus
Kazim Mehndi, and further prayed to stay
the operation and implementation of
impugned order dated 06.03.2018 passed
by Judicial Magistrate, Court No.2, Sitapur