THE HON'BLE SRI JUSTICE K.G.SHANKAR CRIMINAL PETITION No.7072 of 2008 Date: 16.11.2011 Between: Smt. S. Razia Begum ..... Petitioner. AND 1. The Conservation Assistant, Grade-I, Archeological Survey of India, Chandragiri, Chittoor District and another. .....Respondents. The Court made the following : THE HON'BLE SRI JUSTICE K.G.SHANKAR CRIMINAL PETITION No.7072 of 2008 ORDER: The petitioner filed this petition under Section 482 Cr.P.C to quash the First Information Report registered against her. The First Information Report was registered against the petitioner under Sections 448 and 427 IPC as well as under Section 3 of the Prevention of Damage to Public Property Act 1984 (‘the 1984 Act’ for short). The 1st respondent filed counter. 2. The Gurramkonda is a small village in Chittoor District lying between Rayachoti and Madanapalli. The revision petitioner is the owner of Ac.0-37 cents of land in Survey No.234/2A, Gurramkonda Village. There is a Fort on the hillock at Gurramkonda. It would appear that the area of the Fort including the site owned by the petitioner became part of the notified area. Through Gazette Notification dated 04-07-1992, Government of India notified certain areas at Gurramkonda under the Ancient Monuments and Archeological Sites and Remains Act, 1958 (‘the 1958 Act’, for short) and the rules thereunder. Under the 1958 Act and the rules, it would appear that up to an extent of 100 meters from the protected area limits and up to 200 meters from the protected monuments, mining operations and constructions are prohibited. Contending that the petitioner has been making constructions in her site, which is part of the prohibited area, a complaint was lodged on 03-09-2008 by the Conservation Assistant, Garde-I, Archeological Survey of India (the 1st respondent herein). On the basis of the complaint, First Information Report in Crime No.50 of 2008 was issued holding that the petitioner was guilty of the offences under Sections 448 and 427 IPC as well as under Section 3 of the 1984 Act. This First Information Report is questioned by the petitioner contending that prima facie the offences are not made out and that the First Information Report therefore is liable to be quashed. 3. Kumari M. Rameswari, learned counsel representing the 1st respondent admitted that the petitioner owns Ac.0-37 cents of site in Survey No.234/2A. Admittedly, the alleged construction activity is within the site. It is the contention of Sri T. Pradyumna Kumar Reddy, learned counsel for the petitioner that assuming that the petitioner has been making constructions in her site, it could not be considered to be an offence of trespass under Section 448 IPC or mischief under Section 427 IPC. The offences under Sections 448 & 427 IPC occur when an individual enters into the land of another person or commits mischief on the land of another person. Where it is the case of the 1st respondent itself that the petitioner has been attempting to make constructions in the site owned by the petitioner, the offences under Sections 448 IPC and 427 IPC are apparently not made out. 4. The learned counsel for the 1st respondent contended that the 1958 Act was amended in 2010 and that the heritage constructions are liable to be protected and cannot be touched by private persons. Undoubtedly, the Fort of Gurramkonda Hill is an ancient monument and perhaps is an archeological site. It deserves to be called a heritage construction. 5. However, it is the contention of the learned counsel for the petitioner that the house of the petitioner is outside the Fort. It is the case of the 1st respondent itself that the petitioner owns Ac.0-37 cents in Survey No. 237/2A. It is the case of the 1st respondent that the petitioner has been making constructions or has trespassed on to the site not owned by her. I, therefore, consider that even after amendment of the 1958 Act, the petitioner continues to be the owner of Ac.0-37 cents of site and consequently her stay on the premises and her making constructions cannot be dubbed as trespass and mischief. I, therefore, agree with the contention of the learned counsel for the petitioner that prima facie the offences under Sections 448 & 427 IPC are not made out. 6. Apart from the offences under Sections 448 & 427 IPC, the prosecution also alleged that the accused committed the offence under Section 3 of the 1984 Act. Whoever attempts to make constructions damaging the public properties including ancient monument would be punishable under Section 3 of 1984 Act. 7. It is the case of the 1st respondent that the petitioner has been making constructions, which are prohibited by 1958 Act and 1984 Act as the constructions are within a radius of 100 meters of the protected area. That the premises of the petitioner falls within a radius of 100 meters is not disputed by the learned counsel for the petitioner. The petitioner, however, contended that she has not been making any constructions in the said site. Her case is that she merely effected repairs to the premises. It would appear that repairs, minor or major do not fall within the purview of Section 3 of 1984 the Act. However, whether the petitioner has been making minor repairs or has been making extensive constructions is a question of fact, which cannot be decided in a petition under Section 482 Cr.P.C. It is a matter for the trial Court to decide. I, therefore, consider that it is for the petitioner to move the trial Court for an order that the First Information Report is liable to be quashed to that extent. Consequently, the First Information Report is liable to be quashed in respect of Sections 448 & 427 IPC. This petition therefore is allowed in part. The First Information Report is quashed to the extent of the offences under Sections 448 & 427 IPC. In respect of the offences under Section 3 of the 1984 Act, it is open for the petitioner to move the trial Court for appropriate relief. _________________________ JUSTICE K.G.SHANKAR Date:16.11.2011 mrb