Mohan Singh vs The State and Another

K.K. Gupta, J.—Police Station Jhajjar Kotli produced a challan against Mohan Singh, petitioner herein, for the commission of an offence

punishable u/s 447 RPC in the court of Sub-Registrar, Judicial Magistrate, Jammu. Learned Judicial Magistrate on Dec. 31, 1977 dismissed the

challan and discharged the petitioner-accused, finding no case against him to be made out in terms of Section 249 Cr. P.C. Aggrieved by this

order State filed a revision petition which was heard by the learned Additional Sessions Judge, Jammu who on Nov. 30, 1978 set aside the above

said order of the learned Magistrate and sent the case back to him for further proceedings in accordance with Law. Petitioner being not satisfied

with that order has filed the present revision i petition.

I have heard the learned Counsel for the parties and perused the record before me. The first point canvassed by the learned Counsel appearing

for the petitioner is that the Trial Magistrate was justified in invoking the provisions of Section 249, Cr. P.C. as there was no material placed on

record showing involvement of the petitioner u/s 447, RPC. Learned Addl. Advocate-General has, however, argued that recourse to the

provisions contained in Section 249 Cr. P.C. is only to be taken in exceptional circumstances and the Trial Magistrate was thus not competent to

dismiss the challan.

Section 249, Cr. P.C. authorises a Magistrate to stop the proceedings at any stage of the trial and for that he is to record his reasons. Section

241 Cr. P.C. to Section 245 prescribe procedure for the trial of summons cases by a Magistrate. Petitioner was involved in a case triable under

such provision. Section 249 Cr. P.C. gives extra power to a Magistrate to stop the proceedings at any stage of the trial, if he finds that no case is

made out against the accused. Bombay High Court in Marotrao Ganpatrao Jadhav Vs. The State and Another, has also come to a finding that

where a Magistrate comes to the conclusion that no case, not even a prima facie case, u/s 447, I.P.C. was made out, he was perfectly justified in

stopping the proceedings u/s 249 Cr. P.C. without first following the procedure u/s 242 to 244, Cr. P.C. In the present case learned Additional

Sessions Judge has held that the Trial Magistrate was not justified to invoke the provisions of Section 249, Cr. P.C. which were required to be

exercised in very exceptional circumstances. I, however, do not agree with this finding of the learned Sessions Judge. When there is no prima facie

case and the trial court comes to such a conclusion, that court is fully justified to invoke the provisions of Section 249 Cr. P.C.

The second point which requires consideration is whether there was no prima facie case made out against the petitioner-accused requiring

exercise of powers by the Trial Magistrate u/s 249 Cr. P.C. The dispute is between the petitioner-accused and Narain Singh, both real brothers, in

regard to land. Case was registered by police Station Jhajjar Kotli on application filed by Narain Singh mentioning therein that he and his, brother

Mohan Singh were joint owners in various lands but in the year 1956 he purchased more land than the share of his brother in khasra Nos. 138 and

140 in which the brother had no connection. He further stated in the application that Mohan Singh was interfering in his possession and was trying

to take forcible possession of his land,

Criminal trespass has been defined in Section 441, RPC and punishment provided for is contained in Section 447 RPC. In order to constitute

the above said offence following three essentials are required to be proved:

i) Entry into or upon property in possession of another;

ii) If such entry is lawful then unlawfully remaining upon such property;

iii) Such entry or unlawfully remaining must be with intent -

a) to commit an offence; or

b) to intimidate, insult or annoy the person in possession of the property.

Every unauthorised entry is not criminal trespass. A trespass is not criminal unless one or other of the intentions specified in the definition is proved.

The report filed by Narain Singh complainant was quite vague as it did not disclose the date on which the petitioner accused made entry into the

land in his possession or what happened thereafter. It was also silent in regard to the intention of the accused-petitioner. The complainant also

admitted his brother to be co-owner with him in most of the lands. In such manner the requirement of law in constituting the offence of criminal

trespass was not fulfilled and the Trial Magistrate was thus fully justified to hold that prima facie no offence was made out against the accused

petitioner.

For the aforesaid reasons, the revision petition is allowed and the order of the learned Additional Sessions Judge, Jammu is set aside while that

of the Trial Magistrate maintained.