MD ISMAILversusTHE STATE OF BIHAR

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL MISCELLANEOUS No.58926 of 2023
            Arising Out of PS. Case No.-368 Year-2020 Thana- SUPAUL District- Supaul
     ======================================================
1.    MD ISMAIL S/O MD. NASIR R/O VILLAGE- KHARAIL PARSA
      KARNPUR, PS. AND DIST. SUPAUL
2.   MD. ABDUL JABBAR S/O MD. ISMAIL R/O VILLAGE- KHARAIL
     PARSA KARNPUR, PS. AND DIST. SUPAUL
3.   MD. EKBAL @ MD. EKBAL ANSARI S/O MD. ISMAIL R/O VILLAGE-
     KHARAIL PARSA KARNPUR, PS. AND DIST. SUPAUL

                                                                        ... ... Petitioner/s
                                            Versus
     THE STATE OF BIHAR BIHAR

                                            ... ... Opposite Party/s
     ======================================================
     Appearance :
     For the Petitioner/s     :        Mr.Patla Kumari, Adv.
     For the Opposite Party/s :        Mr.Rita Verma, APP
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE ANSUL
                     ORAL JUDGMENT
      Date : 11-05-2026

                     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
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       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
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       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).

                    7. Moreover, the Bihar Public Land Encroachment Act,

       1956 being a special statute providing efficacious redress, and the

       FIR having been lodged by resorting to the general criminal law

       before exhausting or even initiating the statutory remedy, the case

       also falls within category (f) of Bhajan Lal. As held by the

       Supreme Court in Sharat Babu Digumarti v. Govt. of NCT of

       Delhi reported in (2017) 2 SCC 18 (Para 37), it is a settled position

       in law that a special law shall prevail over the general and prior

       laws, and once the special provisions cover the act and the alleged

       offender, resort to the IPC is impermissible. Moreover, the matter

       as a whole arises from dispute over title of land and incidental
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       encroachment. The use of State machinery by invoking criminal

       action into motion being a general law has been resorted to by the

       complainant while by passing specific procedure related to such

       issue which is dealt by special law. While by passing special law

       that Bihar Public Land Encroachment Act, 1956 which is effective

       enough to deal with such case. Hence, by passing special law

       remedy by resorting to general law remedy, is impermissible and

       moreso, such act is nothing but malicious prosecution. Hence, this

       Court can’t permit by passing of special law remedy over general

       law remedy specially when subject matter in both cases are the

       same and one.

                    8. Similarly in the case of Gujarat State Civil Supplies

       Corpn. Ltd. v. Mahakali Foods (P) Ltd., reported in (2023) 6 SCC

       401 (para 34) it was held that "One of principles of statutory

       interpretation relevant for our purpose is contained in the Latin

       maxim leges posteriores priores contrarias abrogant (the later

       laws shall abrogate earlier contrary laws). Another relevant rule of

       construction is contained in the maxim generalia specialibus non

       derogant (General laws do not prevail over Special laws). When

       there is apparent conflict between two statutes, the provisions of a

       general statute must yield to those of a special one."
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                                 9. Allowing the FIR to stand in such circumstances

                    would be to permit the State to use the machinery of criminal law

                    to bypass mandatory quasi-judicial safeguards enacted for the

                    protection of persons alleged to be in occupation of public land —

                    safeguards that include the right to notice, the right to be heard,

                    and the right of appeal.

                                 10. This Court in exercise of its inherent powers under

                    Section 482 Cr.P.C. is duty-bound to intervene to prevent abuse of

                    the process of law.

                                 11. In such view of the matter, the order of cognizance

                    dated 30.05.2022 passed in connection with Supaul P.S. Case No.

                    368 of 2020 by the learned A.C.J.M-II, Supaul is quashed so far as

                    the petitioners are concerned.

                                 12. Accordingly, the present petition stands allowed.



                                                        (Ansul, J)
abhishekkr/-
AFR/NAFR                AFR
CAV DATE                NA
Uploading Date          20.05.2026
Transmission Date       20.05.2026