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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rajiv Sharma, J.
Himachal Pradesh Cricket Association & another – Petitioners
Versus
State of H.P. – Respondent
Cr. MMO No. 37 of 2016
Decided On : 02-8-2016
.
CRIMINAL TRESPASS - SECTION 441 IPC - HP LAND REVENUE ACT - DEMARCATION - SECTION 107 - HP LAND RECORDS MANUAL - CHAPTER 10 - INSTRUCTIONS - SECTION 447 IPC - CRIMINAL TRESPASS - INTENT TO ANNOY, INTIMIDATE OR INSULT - SECTION 482 CRPC - INHERENT POWERS OF HIGH COURT - ABUSE OF PROCESS OF COURT - QUASHING OF CRIMINAL PROCEEDINGS - SECTION 222(1) CRPC - CHARGE - SUFFICIENCY OF PARTICULARS - SECTION 535 AND 537 CRPC - IRREGULARITIES IN PROCEDURE - PREJUDICE TO ACCUSED.
Fact of the Case:
The petitioners, Himachal Pradesh Cricket Association (HPCA), were granted permission to construct an international cricket stadium on land leased to them by the Himachal Pradesh Youth Services and Sports Department. The demarcation of the land was carried out by the Tehsildar, Dharamshala, on 14.11.2013. The demarcation report showed that the HPCA had encroached upon certain land belonging to the State Government. Based on this report, an FIR was registered against the office bearers of the HPCA under Section 447 IPC for criminal trespass. The HPCA filed a petition in the High Court challenging the FIR and the subsequent proceedings, arguing that the demarcation report was defective and that the police had no authority to take suo motu action in respect of the private land owned by Gurmeet son of Gurpreet Singh.
Finding of the Court:
The High Court quashed the FIR and the subsequent proceedings, holding that the demarcation report was not in accordance with the instructions issued under Chapter 10 of the HP Land Records Manual and that the police had no authority to take suo motu action in respect of the private land owned by Gurmeet son of Gurpreet Singh. The Court also held that the FIR and challan did not disclose the commission of any offence under Section 441 IPC and that the charge sheet was vague and general.
Issues: 1. Whether the demarcation report was defective and in contravention of the instructions issued under Chapter 10 of the HP Land Records Manual? 2. Whether the police had the authority to take suo motu action in respect of the private land owned by Gurmeet son of Gurpreet Singh? 3. Whether the FIR and challan disclosed the commission of any offence under Section 441 IPC? 4. Whether the charge sheet was vague and general?
Ratio Decidendi: 1. The demarcation report was defective and in contravention of the instructions issued under Chapter 10 of the HP Land Records Manual, as it did not mention the correct Khasra numbers and did not include the names of all the persons who were co-sharers with the HPCA in the land. 2. The police did not have the authority to take suo motu action in respect of the private land owned by Gurmeet son of Gurpreet Singh, as the encroachment alleged in the FIR was in respect of government land only. 3. The FIR and challan did not disclose the commission of any offence under Section 441 IPC, as they did not allege that the HPCA had entered upon the property with the intent to commit an offence or to intimidate, insult or annoy any person in possession of the property. 4. The charge sheet was vague and general, as it did not specify the date and time of the alleged offence and did not mention the names of the persons who had been humiliated, intimidated or annoyed.
Final Decision: The petition was allowed. FIR No. 57 of 2014 dated 8.4.2014 registered under Section 447/34 IPC at PS Dharamshala was quashed, including the charge sheet framed by the learned Chief Judicial Magistrate, Dharamshala in case No. 103-II/2014 and summoning orders dated 17.11.2015 and 21.11.2015, respectively. Pending applications, if any, were also disposed of.
Rajiv Sharma, J.
1. The Commissioner-cum-Secretary (Education) vide letter dated 15.9.2001 granted permission for transfer of land to the Himachal Pradesh Youth Services and Sports Department with certain conditions. The petitioner-Company executed a lease deed through Director, Himachal Pradesh Youth Services and Sports Department for the construction of International Cricket Stadium. The land measuring 49118.25 sq. meters was leased out. The Stadium was constructed. The Dy. Superintendent of Police, SV & ACB, Dharamshala sent a communication to the Deputy Commissioner, Kangra at Dharamshala informing him that the investigation in case FIR No. 14/2013 dated 3.10.2013 registered under Sections 447, 120-B IPC and 3 PDP Act, Section 13(2) of P.C. Act was in progress and demarcation was required. The request was to direct the revenue department for demarcation of the land. The demarcation was carried out by the Tehsildar, Dharamshala on 14.11.2013. The communication was sent by the Tehsildar, Dharamshala to the Dy. Superintendent of Police, SV & ACB, Dharamshala on 16.11.2013. According to the report, encroachment has been made on the land comprised in Kh. Nos. 3620/2826/1 measuring 216-25 sq. meters, 3618/2826 measuring 756-38 sq. meters, 3675/3547/3335 measuring 966-56 sq. meters and Kh. No. 460/207 measuring 414-20 sq. meters at Mohal Chalien. The Himachal Pradesh Cricket Association (hereinafter referred to as HPCA) was in possession of 45959-68 sq. meters of land. In lease deed No. 678 dated 29.7.2002, the land has been shown in Kh. Nos. 2826/1238/1, 3547/3335/1, 3547/3335/2/2, 3335/2 kita 5 measuring 49118-25 sq. meters. The Addl. Director General (SV & ACB), Shimla sent the communication to the Superintendent of Police, Kangra at Dharamshala on 20.2.2014 requesting him to register case under Section 447 IPC and get the matter investigated accordingly. Thereafter, case was registered under Section 447 IPC at PS Dharamshala. The In-charge, PS Dharamshala sent the communication to the Tehsildar, Dharamshala on 16.4.2014, requesting him to prepare para wise report of following documents qua relevant Kh. Nos. and hand over the same to the police for further investigation:
(i) In the report it is shown that HPCA has encroached upon Kh. Nos. 3620/2826/1 measuring 216.26 sq. meter, 3618/2826/1 measuring 756.28 sq. meter and 3675/3547/3335 min/1 measuring 966.56 sq. meter and if any case file has been prepared regarding this, attested copy of which will be handed over to the police.
(ii) Relevant documents and jamabandies of aforesaid Khasra numbers be prepared and handed over to the police.
(iii) If there has been aks tatima (field maps) of the aforesaid Khasra numbers, the same be handed over to the police.”
2. The Tehsildar, Dharamshala sent a communication to incharge PS Dharamshala on 9.6.2014 informing him that the report has been prepared after conducting the investigation at page 392 of the paper book. The In-charge PS Dharamshala sent a letter to the Tehsildar, Dharamshala, Distt. Kangra on 11.6.2014. The text reads as under:
“Reference to your office letter No. 769 dt. 9.6.2014, it is submitted that HPCA has encroached upon the additional land comprised in Kh. No. 3618/2826, 3620/2838 and 3675/3647/3335 and in this regard separate files qua additional possession have not prepared. After the demarcation conducted on 14.11.2013 by the Tehsildar, tatima of encroached land along with original documents was stated to be sent to the SV & ACB. Hence, jamabandi, copy of tatima and demarcation report in respect of aforesaid khasra numbers be prepared and hand over to the police. Besides, it may be mentioned whether demarcation of the aforesaid khasra numbers can be carried out again or not. Apart this, it may be shown in the tatima as to on how much portion of aforesaid numbers the HPCA has made illegal possession.”
3. The Tehsildar, Dharamshala informed the In-charge PS Dharamshala on 3.7.2014 that as far as re-demarcation is
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