Anil Kumar Mishra and Others vs State of Uttar Pradesh and Others

Pankaj Naqvi, J.—Heard learned counsel for parties.

This application under Section 482 Cr.P.C. has been preferred against the order dated 3.2.2015 passed by Metropolitan Magistrate (Court No. 6), Kanpur Nagar in Case No. 949 of 2013 (State Vs. Anil Kumar Mishra and others), whereby application filed by the applicant for alteration of charge has been rejected.

The O.P. No. 2 filed an application under Section 156(3) Cr.P.C. on 23.2.2013 alleging that the applicants are in unauthorized possession of the property in dispute; that the said application was preceded by a notice dated 16.2.2013 purporting to be under Section 441 IPC as amended by the State on which by the order of the learned Magistrate, an FIR came to be registered under Section 448 IPC on 24.3.2013 and other offences, in which Charge Sheet was filed on 29.4.2013 and charges framed under various provisions including Section 448 IPC on 28.3.2014. Subsequently, applicant preferred an application under Section 482 Cr.P.C. No. 36754 of 2014, against the order dated 28.3.2014, which came to be disposed of on 5.9.2014 that in case, applicants file an application before the court concerned for alteration of a charge of Section 448 IPC, same would be considered in accordance with law. Pursuant thereto, an application for alteration of charge has come to be rejected under the impugned order.

The sole contention urged is that in view of U.P. Amendment to Section 441 IPC a notice is to be duly served upon the trespasser by the date specified in the notice before he can be said to have committed "criminal trespass". The contention is that as the notice dated 16.2.2013 called upon the applicants to deliver alleged unauthorized possession on or before 28.2.2013, an application under Section 156(3) Cr.P.C. filed on 23.2.2013 was not maintainable, consequently an FIR under Section 448 IPC lodged pursuant thereto on 24.3.2013 is without jurisdiction. Learned counsel for applicants relied upon a judgment of this Court in the case of Ved Prakash Vs. Chaman Singh and Others, (1995) CriLJ 3890 .

Learned A.G.A. has opposed the submission.

Section 441 IPC as amended by U.P. Act 31 of 1961 defines "criminal trespass" as under:-

"441. Criminal Trespass:--Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy and person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains therewith intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, or, having entered into or upon such property, whether before or after the coming into force of the Criminal Law (U.P. Amendment) Act, 1961, with the intention of taking unauthorised possession or making unauthorised use of such property fails to withdraw from such property or its possession or use, when called upon to do so by that another person by notice in writing, duly served upon him, by the date specified in the notice, is said to commit "criminal trespass".

A perusal of the aforesaid would indicate that the essential ingredients of the offence of criminal trespass are as under:

(1) The entry upon others property.

(2) With intent to commit an offence or to intimidate, insult or annoy;

(3) Intention should be of taking such unauthorized possession of such property;

(4) Failure to withdraw from such property or its possession or use when called upon to do so by notice in writing duly served upon him by the date specified in the notice.

The rationale for notice is that before the unauthorized occupant is held to be in criminal trespass as contra to civil trespass, law requires that he should first be called upon by notice in writing duly served upon him who fails to withdraw from such property/possession or use, by the date specified in the notice, then only, he is said to have committed "criminal trespass", under Section 448 IPC.

Coming to the facts of the present case, the date of alleged notice as given by O.P. No. 2 is 16.2.2013 calling upon the applicants to deliver possession of the unauthorized occupation on or before 28.2.2013 in favour of O.P. No. 2. Merely because before the expiry of the period of notice an application under Section 156(3) Cr.P.C. came to be filed on 23.2.2013 would not ipso facto render the registration of FIR on 24.3.2013 under Section 448 IPC as illegal/without jurisdiction. The position, which now emerges is that a notice under Section 441 IPC was issued on 16.2.2013 consequent to which FIR came to be lodged on 24.3.2013, i.e. by the date, the FIR came to be lodged the possession of the property in terms of the notice had not been delivered. If that be so, in the opinion of the Court, no illegality could be attached to the impugned order.

The authority cited by the learned counsel for the applicants would not be applicable on the facts of the present case as in the said case, there was no notice at all under Section 441 IPC preceding the complaint, as is evident from paragraph-15 therein.

No other plea is urged.

The application is dismissed.

However, no observation made in this order would prejudice the case of either side as the said observations have been made only to examine the correctness of the order impugned.