Rajjoo Mal vs State and another

Hari Swarup, J.

These three references have been made with the recommendation that the conviction of the applicants in each of the three References under Section 447, I.P.C. and the sentence of fine of Rs. 501 awarded for the offence be quashed. Three complaints had been filed by the Assistant Engineer P.W.D. on the allegation that the accused in each case was in unauthorised possession of the property in dispute and in spite of the notice served upon him, had not withdrawn from the property. The learned Magistrate without recording any finding about service of the notice contemplated by Section 441, I.P.C. convicted the accused on the finding that the land belonged to the P.W.D. and had been encroached upon by the accused.

The learned III Additional District and Sessions Judge on examining the evidence came to the conclusion that the notice was not proved to have been served on the accused. Learned Government Advocate has referred to the evidence in the case and has pointed out that there is evidence to the effect that the notice had been sent. Sending of notice is, however, not sufficient. Section 441, I.P.C. provides for a civil trespass getting converted into criminal trespass on the service of the notice on the trespasser to vacate the property. There is no evidence to show that the notice issued under Section 441, I.P.C. by the complainant had been served on the accused. Unless the notice had been served the civil trespass could not get converted into a criminal trespass. A fortiori the accused could not be convicted under Section 447, I.P.C.

In the result the references are accepted, the order of the learned Magistrate convicting the accused under Section 447, I.P.C. and sentencing him to pay fine of Rs. 501 each are quashed.