Rakesh Kumar and Others vs State of U.P. and Another

M.C. Jain, J.—Heard the learned Counsel for the revisionist and learned Counsel for Opposite Party No. 2. The learned A.G.A. is present for Opposite Party No. 1.

This revision sought to be filed against the order dated 13.5.1991 passed by Special Judge, Muzaffarnagar in Criminal Revision No. 230 of 1990 is admitted and is finally disposed of today itself for which purpose also it is listed today as per the earliest order dated 26.7.1991.

Opposite Party No. 2 before this Court is tenant of certain premises of the Applicants No. 1 to 4 and Applicant Nos. 5 to 7 are said to be their associates. The present Opposite Party No. 1 filed a complaint against the applicants inter alia u/s 441 of I.P.C. that they forcibly evicted him from the tenanted accommodation in between the night of 2/3.5.1990. A notice as per Section 441, I.P.C. was served and ultimately the complaint was filed. The Magistrate found that notice u/s 441, I.P.C. was defective and dismissed the complaint. On revision filed by the present Opposite Party No. 2, revisional court reversed the order of the Magistrate. Section 441, I.P.C. specifically provides that in the notice to be served upon offender, it has to be specified as to by which date he has to withdraw his unauthorised possession. In the case at hand, notice did not specify such actual date. Therefore, the notice was defective and Magistrate was perfectly justified in dismissing the complaint. The revisional court has improperly exercised its jurisdiction in reversing the Magistrate''s order.

This Revision is allowed. The order dated 13.5.1991 in question passed by the revisional court in Criminal Revision No. 230 of 1990 is quashed and that of the Magistrate dated 23.8.1990 dismissing the complaint u/s 203, Code of Criminal Procedure is upheld.