PATNA, India, June 10 -- Patna High Court issued the following judgment on May 11:

1. Heard learned counsel for the petitioners and learned Additional Public Prosecutor for the State.

2. Petitioners seek quashing of the order of cognizance dated 30.05.2022 passed in connection with Supaul P.S. Case No. 368 of 2020 by which the learned Chief Judicial Magistrate, Supaul has taken cognizance of the offences under Sections 420, 447, 353/34 of the Indian Penal Code.

3. The order was passed in CWJC No. 6288 of 2020 arising out of Token No. 7037 of 2020. Allegation against the petitioners is that pursuant to the said order, the writ petitioners moved the appropriate Court. Pursuant to such action, the site was inspected by a team of officials and the petitioners were found to have encroached upon the land.

4. Learned counsel for the petitioners submits that they also have a valid claim over the land. The question here is not as to which of the party is having a valid claim rather the question is that there exist special act namely the 'Bihar Public Land Encroachment Act' providing for declaring the person as encroacher and thereafter his removal. The said Act is sufficient to take care of the action alleged against the petitioners.

5. Learned counsel for the informant and learned Additional Public Prosecutor for the State have filed respective counter affidavits and vehemently opposed prayer for quashing of the order of cognizance dated 30.05.2022.

6. In the present case, the Bihar Public Land Encroachment Act, 1956 constitutes a complete and exhaustive code for dealing with encroachment upon public land in the State of Bihar. The Act prescribes a mandatory sequential procedure commencing with notice under Section 3, inquiry under Section 4, and culminating in a declaration and order under Sections 5 and 6. The status of 'encroacher' is not a self-evident fact; it is a legal finding that must be arrived at by the competent authority after due notice and hearing, in conformity with the principles of natural justice. In the absence of such a declaration or even initiation of proceedings under the Act, the registration of an FIR under the provisions of the Indian Penal Code, alleging criminal trespass or related offences arising from the same act of alleged occupation, cannot be sustained. The allegations in the FIR, even if taken at their face value, do not prima facie constitute a cognizable offence, since the condition precedent to any such offence - the determination of encroachment by the competent authority - has not been satisfied. This squarely falls within category (a) of the illustrative categories laid down by this Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 (Para 102).

*Rest of the document can be viewed at: (https://patnahighcourt.gov.in/viewjudgment/NiM1ODkyNiMyMDIzIzEjTg==-O9ABT--ak1--lFgeY=)

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