Criminal proceedings for encroachment must be based on proper demarcation and adjudication by revenue authorities, not solely on police investigations.

JUDGMENT

Om Prakash Shukla, J.

Heard learned counsel for the applicant as well as the learned Additional Government Advocate.

2. The present application under Section 482 of the Code of Criminal Procedure, 1973 has been filed by the applicants, Shankar Nath Pandey and Shambhu Nath Pandey, seeking to quash the summoning order dated 15.03.2021 passed by the Judicial Magistrate-I, Faizabad in Criminal Case No.137 of 2021 : State v. Shankar Nath Pandey & others arising out of Case Crime No. 335 of 2019, under Section 3 of the Prevention of Damage to Public Property Act, 1984, Police Station Khandasa, District Ayodhya and also to quash the entire proceedings initiated against the applicants.

3. The records of the case indicate that criminal proceedings were initiated pursuant to an FIR dated 01.09.2019 lodged against the applicants and one Kaushal Kishore, which was registered as Case Crime No.335 of 2019, under Section 3 of the Prevention of Damage to Public Property Act, 1984 (hereinafter referred to as PDPP Act), Police Station Khandasa, District Ayodhya. The case was investigated and a charge sheet dated 21.09.2019 was submitted, whereupon cognizance was taken by the Judicial Magistrate-I, Faizabad and on 15.03.2021, an order for summoning the applicants was passed. It is this order, which has been challenged before this Court in the instant application.

4. It is submitted by the learned counsel for the applicants that the applicants are recorded co-tenure holder of Gata Nos.2727 adjacent to Gata No.2722 and 2729 (chak road of Gaon Sabha) situated in Village Kotiya, Pargana Khandasa Tehsil Milkipur. These Gatas belonging to the applicants are connected with the said chak road. The applicants for the purpose of safety of their crops, which were cultivated on the aforesaid gatas from the wild animals, had made fencing with the barbed wire (sparked wire), however, on raising objection by the Lekhpal on the said fencing on inspection, the applicants have removed the said fencing. In this regard, Lekhpal has also submitted its report dated 30.10.2019 to the Sub-Divisional Officer to the effect that the applicants themselves have removed the said encroachment and at present, there is no encroachment on the land in question of the Gaon Sabha. However, the Investigating Officer, in the meantime, in a hasty manner, has submitted a charge-sheet dated 21.09.2019 under Section 3 of the Prevention of Damage to Public Property Act, 1984 against the applicants i.e. within 20 days from the date of lodging the F.I.R. without taking any statement of any of the villagers nor any independent witness and as such the whole exercise made by the Investigating Officer has been done under the influence of the then Gaon Pradhan, who has enmity with the applicants.

5. Learned Counsel for the applicants has, thus, submitted that cognizance taken in the matter is illegal and without application of judicial mind. The disputed plot/land, for which encroachment is said to have been made, is related to Gaon Sabha land (chak road) for which specific provisions have been provided under the Uttar Pradesh Zamindari Abolition and Land Reforms Act and Revenue Code to remove such type of encroachment. It is further submitted that since there is specific provisions under U.P.Z.A. and L.R. Act/Revenue Code for eviction/removal of encroachment/ unauthorized occupation of plot/land in question, provisions of Prevention of Damage to Public Property Act are not applicable in the matter.

6. Referring to provisions of Sections 3 of the Prevention of Damages to Public Property Act, learned counsel for the applicants submitted that continuation of prosecution against applicants in this matter is nothing but an abuse of process of law. According to the learned Counsel, the applicants are senior citizens aged about more than 70 years and as no offence under Section 3 of the Prevention of Damage of Public Property Act, 1984 as alleged in the F.I.R., charge-sheet as well as in summon