Romola Kapoor vs State & Ors.

Invoking jurisdiction under Section 561A of the Code of Criminal Procedure, petitioner has filed this petition seeking quashing of FIR no. 183

of 2007 registered at Police Station Domana under Section 448 RPC.

It is stated in the petition that Will executed by Swarn Kumari Dutta, the mother of the petitioner, in favour of respondent No.2, Mrs. Aneta, her

sister, was null and void and a civil suit seeking declaration that the Will was null and void and inoperative had been filed by her in the Court of

learned SubRegistrar (Munsiff) Jammu, who had directed the parties to maintain status quo with regard to the possession and position on spot over

the suit property. The FIR is stated to have been lodged to use the police force for settlement of the civil dispute between the parties.

Petitioner's counsel, Mr. Dubey, submits that the contents of the FIR do not spell out requisite ingredients needed for offence punishable under

Section 448 RPC, and even if the allegations made in the FIR were to indicate about a trespass, it was a purely civil trespass, which could not

have been taken cognizance of by the police. He further submits that as respondent No. 2 was not present at the time of the alleged trespass, so

there could not have been any intimidation, annoyance or injury to any person in possession of the property, and in that view of the matter, offence

under Section 448 RPC cannot be said to have been prima facie established before the registration of the FIR. Reliance is placed by learned

counsel on State v. Mahinder Singh, reported as 2007(1) Crimes 698, an unreported judgment of Hon'ble Supreme Court of India, delivered in

case titled Kanwal Sood v. Nawal Kishore and Anr, in Cr. Appeal No. 69 of 1981 decided on 26.11.1982, and on Vajrapu Sambayya Naidu v.

State of A. P., in Cr. Appeal No. 603 of 2002 decided on 2.9.2003.

Relying upon Rash Behari Chatterjee v. Fagu Shaw & Ors, reported as 1969 (2) SCC 216, and Indian Oil Corporation v. NEPC India Ltd.,

(2006) 6 SCC 736, learned counsel for respondent No.2 submits that presence of an owner in a house is not a necessary ingredient of the offence

punishable under Section 448 RPC, when the person committing trespass had entered the house with the intention to commit offence. Referring to

the contents of the FIR learned counsel submits that as the ladies had forced their entry into the house after manhandling the security guard

employed by respondent No.2 to guard the premises, so offence under Section 448 RPC had been clearly established.

Meeting the submission of learned counsel for the petitioner that the alleged trespass was a civil trespass, learned counsel referred to various

paragraphs of the civil suit filed by the petitioner, wherein she had not claimed any relief of possession of the suit property. No injunctive directions

too had been sought by the petitioner for protecting her possession. All that she had sought in the suit was that Will executed by Swam Kumari

Dutta dated 29.10.1998 registered with SubRegistrar (City) Jammu on 5.11.1998 be declared null and void and inoperative and the opposite

party be restrained from alienating, transferring or auctioning away the suit property, to urge that neither the averments made in the suit, and nor the

injunctive direction issued by the civil Court, in any way, conclusively holds the petitioner to be in exclusive and absolute possession of the

property, on the basis whereof, plea of trespass being civil trespass, may be entertained.

I have considered the submissions of learned counsel for the parties arid gone through the contents of the FIR, copy of the suit and the order

passed by learned Sub Registrar (Munsiff) Jammu, besides the other material placed on records.

Perusal of the FIR shows that it was at about 6.30 a.m of September 13, 2007 that the petitioner and her daughter Seema, accompanied by

two males, had forced their entry into the house to take possession thereof and to commit offence. They had, in furtherance thereof, manhandled

the security guard of respondent no.2, who had been posted there to guard the house, opened the main gate and taken possession of the house.

This act of the two ladies in using force, manhandling the security guard and disabling him from discharging his duties as a security guard to protect

the house, prima facie amounts to their committing offences punishable under Sections 448/341/34 RPC. Petitioner's counsel, therefore, is not right

in contending that the allegations made in the FIR do not spell out the requisite ingredients of any offence punishable under the Ranbir Penal Code.

Petitioner's counsel's next contention that as respondent no.2 was not present in the house, so there could be no intimidation, insult, annoyance

or injury to any person so as to constitute the offence punishable under Section 448 RPC, is misconceived in view of the law laid down by Hon'ble

Supreme Court of India in Rash Bihari's case (supra), where, while dealing with a similar question, their Lordships of Hon'ble Supreme Court of

India had held as follows:

The only question which arises in the present appeal is whether on the fact and circumstances of the case the intent to annoy the appellant has

been established. The law on the point is now settled by this Court in Mathuri v. State of Punjab, 19645 SCR 916 at p. 927 = (AIR 1964 SC 986

at p. 991). Das Gupta, J., speaking for the court after reviewing the authority, stated the law thus:

The correct position in law may, in our opinion be stated thus: In order to establish that the entry on the property was with the intent to annoy

intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; that it is

not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that

this likely consequence was known to the person entering; that in deciding whether the aim of the entry was the causing of such annoyance,

intimidation or insult, the Court has to consider all the relevant circumstances including the presence of knowledge that its natural consequences

would be such annoyance intimidation or and including also the probability of something also then the causing of such intimidation, insult, or

annoyance, being the dominant intention which prompted the entry.

This judgment was not brought to the notice of the High Court in this case. In view of this Judgment it is not necessary to review the earlier High

Court cases.

Now the question arises whether the intention of the respondents was to annoy the appellant or not within the meaning of Section 441, I. P. C.

It seems to us that on the facts of this case there cannot be any doubt that the intention of the respondents was to annoy the appellant who was in

possession of the case land. There could have been no hope on the part of the respondents that they would be able to stay in possession of the

land. The litigation started in 1951 and it was on February 3,1963 that the appellant was able to obtain possession. It is only after two weeks after

that day that the respondents chose to trespass and start construction. In this case we cannot find any other dominant intention which prompted the

trespass.

The High Court seems to have proceeded on the fooling that the appellant was not in actual possession of the property and further that the law

requires that the complainant must not only be in actual possession but also be present at the time of trespass so as to bring the offence within the

provisions of s. 441/447, I. P. C. In our view the High Court was in error in holding that the appellant was not in actual possession of the property.

The land in dispute was lying vacant after the appellant obtained possession and the actual possession must be of the appellant. Further the law

does not require that the intention must be to annoy a person who is actually present at the time of the trespass.

I do not find any merit in petitioner's counsel's yet another contention that petitioner was in possession of the property and her entering the house

in question would not amount to commission of any offence, for the issue as to whether or not the petitioner was in possession of the house in

question cannot be examined in these proceedings. It is so because it is the province of investigating agency and after conclusion of the investigation

if any offence is found to have been committed by the petitioner or some one else, of the Court, seized of the case, to examine as to whether or not

the petitioner was in possession of the property when she had been accused to having committed the criminal trespass. Even otherwise there is no

convincing material on records on the basis whereof it may be said that the petitioner was in possession of the suit properly. The interim order

passed by the civil Court too does not indicate that the Civil Court had, at any stage of the proceedings, recorded any such finding holding the

petitioner to be in possession of the suit house. Paragraph no. 23 of the petitioners' plaint before the Civil Court, on the other hand, indicates that it

was respondent no. 2 who was in possession of the property in the month of July, 2007, i.e. much before the alleged criminal trespass, who had

not permitted the petitioner to enter the suit property.

Petitioner's contention that she was in possession of the house and no offence had been committed by her, as reported in the FIR, cannot thus

be accepted.

Learned counsel for the petitioner's contention that in view of the litigation between the parties in the civil Court, trespass attributed to the

petitioner, if any, would be a civil trespass rather than a criminal trespass, too is without any substance because neither any sufficient material has

been placed on records on the basis whereof possession of the petitioner over the house in question may be said to have been conclusively

established, nor can such a question be examined at this stage in present proceedings when the investigation in the case is still at its infancy.

Law is well settled that power to quash criminal proceedings cannot be used to stifle or scuffle a legitimate prosecution and the power vested in

the Court has to be used sparingly and with abundant caution.

Keeping in view the law laid down by Hon'ble Supreme Court of India in State of Haryana v. Bhajan Lal, reported as 1992 Supp (1) SCC

335, and Indian Oil Corporation v. NEPC India Limited, reported as (2006)6 SCC 736, petitioner has not succeeded in making out a case for

quashing FIR No. 183 of 2007 registered at Police Station Domana under Section 448 RPC.

There being no merit in this petition, which is, accordingly, dismissed.