JUDGMENT - IPC 441, 447 - CRIMINAL TRESPASS - Rahtu Lal @ Rahtu Ram @ Divyanand And 4 Ors Vs STATE OF U P - HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH


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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR
Court No. - 12
Case :- U/S 482/378/407 No. - 1421 of 2004

Applicant :- Rahtu Lal @ Rahtu Ram @ Divyanand And 4 Ors.
Opposite Party :- State Of U.P.& Another.
Counsel for Applicant :- Arun Sinha
Counsel for Opposite Party :- Govt.Advocate

Hon'ble Shashi Kant,J.


1. Heard Sri Arun Sinha, learned counsel for applicants and learned A.G.A. for the State of U.P.

2. This application under Section 482 of Criminal Procedure Code, 1973 (in short 'Cr.P.C.') has been filed for quashing the proceedings intiated in pursuance to charge sheet filed in Case No. 3558 of 2004 - State Vs. Rahtu Lal @ Divyanand and Others, arising out of Case Crime No. 371 of 2002, under Section 447 Indian Penal Code (in short ' I.P.C.') at Police Station - Sandila, District - Hardoi, pending in the court of Additional Chief Judicial Magistrate, Court No. 1, Hardoi.

3. Brief facts of the case as transpire from the record are that :

3.1 First Information Report (in short 'FIR') (annexure no. 1) was lodged by opposite party no. 2 on the basis of which a case was registered against applicant nos. 1 to 5, under Section 447 I.P.C. as Case Crime No. 371/02 and under Section 2/3 of Gangsters Act as Case Crime No. 372/02.

3.2 For quashing of above FIR and for stay of their arrest in the above referred cases, applicants preferred writ petition before this Court being Writ Petition No. 6101 (M.B.) of 2002 - Rathuram @ Divyanand And Others Vs. State of U.P. and Others (annexure no. 2), and this Court vide order dated 08.10.2002, stayed the arrest of applicants.

3.3 After investigation final report has been filed in Case Crime No. 372/02 as no case was made out against applicants under Section 2/3 of Gangsters Act. The above final report filed in Case Crime No. 372/02 was accepted by the Court of Special Judge, Gangsters Act, Lucknow, while charge sheet (annexure no. 3) has been filed in Case Crime No. 371/02 by the Police. Hence, this application under Section 482 Cr.P.C. has been filed by the applicants for the reliefs as claimed above.

4. Heard learned counsel for the parties and perused the record.

5. Learned counsel for applicants submits that applicant no. 1 is a religious person and known as Divyanand, he is running an 'Ashram' in the name of 'Sant Kripal Yog Sadhna Ashram', situated at Sant Kripal nagar, Sandila, Hardoi (U.P.), which was established in the year 1996, on a purchased piece of land by the applicant no. 1. Applicant nos. 2, 3, 4 and 5 are followers of applicant no. 1 and are attached with "Divyanand Spiritual Foundation, Sant Kripal Nagar, Sandila, Hardoi".

5.1 In the year 1978, applicant no. 1 moved an application for permission for plantation of trees on the land of Gaon Sabha - Mitee and in pursuance of the said application Block Development Officer issued 'Sanad' (annexure no. 20) in respect to plot nos. 37, 34, 20, 104, 100, 101, 210, 231, 235, 237, 239, 317, 11 and 125 on behalf of the State Government.

5.2 After grant of 'Sanad' to the applicant no. 1 on 21st August, 1989, applicant no. 1 completed plantation of trees within the time stipulated in the 'Sanad' and the said trees planted by the applicant no. 1 on the plots in question are still standing on the above plots.

5.3 Subsequent to that applicant become 'Bhoomidhar' of the above plots in the light of order dated 18.09.1986, passed by the Consolidation Officer, which became final. Applicant no. 1 is running Ashram, Hospital, Hostel and School on the said land.

5.4 Learned Counsel for applicants further submits that impugned charge sheet is false, fictitious, wrong and erroneous and passed on wrong facts, because, the land which has been mentioned in the FIR is near Ashram of the applicant no. 1, applicant no. 1 has done plantation on certain part of land in question and was maintaining natural environmental atmosphere in the interest of public at large.

5.5 Opposite party no. 2 has wrongly reported that applicant no. 1 has unauthorisedly obtained the land in question. The land in question was never used for farming purposes nor it could be used as it was 'Usar' land. Opposite parties never approached the applicant or sent any notice regarding the same.

5.6 High ranking dignitaries as Chief Minister, Ministers and Officers have visited the 'Ashram' of the applicant no. 1 and the plantation work has been appreciated by all. The work done by the applicant was appreciated by all but under political pressure only to defame the applicant and to show him as land grabber, the FIR has been lodged.

5.7 In the above facts and circumstances, applicants cannot be termed as trespassers nor they can be tried under the provisions of Section 447 I.P.C., because no offence under that section is made out against the applicants. Since notice under amended Section 441 I.P.C. is mandatory requirement but the same has not been completed, because no notice under Section 441 I.P.C. is ever sent to applicants. Due to non compliance of this mandatory provision, offence of "criminal trespass" which has been defined in Section 441 I.P.C. has not been made out, therefore, charge sheet filed against applicants under Section 447 I.P.C. is legally not sustainable.

6. Controverting the above arguments of learned counsel for applicants, learned A.G.A. has vehemently opposed the various submissions made on behalf of applicant and contrary to that he argued that effect of non sending of notice under amended Section 441 I.P.C. has to be looked by the Court concerned, the applicant may move an application of discharge before the Court below and after considering the whole material available on record, learned court below will be in better position to pass appropriate orders, in the matter. As such, this is not a case where quashing of charge sheet can be made.

7. In reply to the above arguments of learned A.G.A., learned counsel for applicants submits that this is a fit case for quashing the charge sheet because due to legal defect, in filing of charge sheet against applicants, same is not maintainable and is liable to be quashed in exercise of inherent powers of this Court under Section 482 Cr.P.C. to check and prevent abuse of process of the Court.

8. For proper appreciation of the rival arguments raised on behalf of parties, amended Section 441 and 447 I.P.C. are of vital importance and the same are reproduced hereinbelow :-
"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 any person in possession of such property or, having lawfully entered into or upon such property, unlawfully remains there with 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 (I.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" - Uttar Pradesh Act No. 31 of 1961." (emphasis by the Court)

"Punishment for criminal trespass.
447. Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both."

9. It is quite clear from the perusal of above amended Section 441 I.P.C. that any person entered into possession of any property of another person before or after coming into force of the criminal law (U.P. Amendment Act, 1961), with the intention to take unauthorised possession or making unauthorised use of such property and fails to withdraw from such property or its possession or use in compliance of the written notice of another person duly served upon him by the date specified in the notice as said to committed "criminal trespass".

10. Admittedly, in this case no written notice as specified in the amended Section 441 I.P.C. to withdraw from such property or its possession or use of the land alleged to be of another person i.e. opposite party no. 2 has been served on the applicant, therefore, there is no occasion for the applicants to comply with such notice and vice-versa failing to comply with the notice. As such no offence of "Criminal trespass" can be said to be committed. Overlooking these facts, charge sheet has been filed under Section 447 I.P.C. against the applicants, which is bad in the eyes of law. They cannot be punished for the offence which has actually not been committed by them.

11. In the above facts and circumstances, I am of the considered view that filing of charge sheet under Section 447 I.P.C. against the applicants is a serious abuse of process of the Court which must be prevented. Because on the basis of such legally defective charge sheet there is no possibility to end the case in conviction of the applicants and whole exercise before the Trial Court will be mere wastage of time and resources in such futile exercise.

12. For the facts and reasons discussed above, this application deserves to be allowed.

13. The application is allowed with costs. The proceedings initiated in pursuance of charge sheet filed in Case No. 3558 of 2004 - State Vs. Rahtu Lal @ Divyanand and Others, arising out of Case Crime No. 371 of 2002, under Section 447 Indian Penal Code (in short ' I.P.C.') at Police Station - Sandila, District - Hardoi, pending in the court of Additional Chief Judicial Magistrate, Court No. 1, Hardoi are hereby quashed.
Order Date :- 25.3.2015
A. Verma


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