IMPORTANT POINT
The judgment established the penal consequences of encroaching public utility land and emphasized the distinction between civil and criminal proceedings in cases of land encroachment.

JUDGMENT :

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 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