Point of Law: 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.

JUDGMENT :

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 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 Sub-Divisional Officer of the concerned Sub-Division 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