Gauhati High Court
Md. Sahabuddin vs Sayed Monowar Hussain on 18 February, 1998
Equivalent citations: 1999CRILJ349
Author: A.K. Patnaik
Bench: A.K. Patnaik
ORDER A.K. Patnaik, J.
1. This is a revision under Sections 397 and 401 of the Code of Criminal Procedure, 1973, against the judgment dated 10-7-90 of the learned Additional Chief Judicial Magistrate, Kamrup, Guwahati in G.R. Case No. 3174/86 acquitting the accused/opposite party from the offences under Sections 427/448/506 of the Indian Penal Code.
2. The facts briefly are that an FIR was lodged by the petitioner on 26-8-86 before the Officer-in-charge, Dispur Police Station stating therein that he owned and possessed a plot of land at Srinagar (Christian Basti) Dispur Elaka and out of the said plot of land he donated a part of land for the Mosque. But the opposite party along with twenty other people formed an unlawful assembly armed with deadly weapons and forcibly and wrongfully trespassed into the said land and grabbed the land with house thereon and when the petitioner protested, the opposite party wanted to assault him and threatened that if anybody tried to remove the fencing he would be killed, on the said FIR, the Dispur Police Station Case No. 400/86 was registered and after investigation a charge-sheet was filed in G.R. Case No. 3174/86 in the Court of Additional Chief Judicial Magistrate, Kamrup, Guwahati. The trial Was then conducted and as many as four Witnesses were examined on behalf of the prosecution and two witnesses were examined on behalf of the defence. The petitioner then filed an application Under Section 311, Cr.P.C., 1973, for examination of some of the witnesses on certain points and the said application was allowed by order dated 10-7-89 by the learned Additional Chief Judicial Magistrate Against the said order dated-10-7-89, the opposite party filed Criminal Revision No. 439/89 before this Court and by order dated 20-l1-89 this Court allowed the Revision and set aside the order dated 16-7-89 of the learned Additional Chief Judicial Magistrate with, however, the observation that the prosecution had the right to approach the Court again Under Section 311, Cr.P.C., and if such petition was filed the Court must record valid and cogent reason if it allows the same. Soon thereafter the petitioner filed a fresh petition on 26-4-90 under Section 311, Cr.P.C., 1973, for summoning some witnesses, for recalling D.W. 1 for further examination arid for calling for relevant holding Registers from the Guwahati Municipal Corporation and Revenue records, etc. from the concerned S. D. O's Office. But the said petition under Section 311, Cr.P.C. was rejected by the learned Additional Chief Judicial Magistrate by his order dated 30-5-90. Thereafter, on 10-7-90, the impugned judgment was delivered by the learned Chief Judicial Magistrate, Kamrup, Guwahati acquitting the opposite party from the offence under Sections 427/448/506 of the Indian Penal Code.
3. At the hearing while Mr. A. Sheriff, learned Counsel has appeared on behalf of the petitioner, none has appeared for the opposite party despite notice.
4. Mr. A. Shariff, learned Counsel for, the petitioner has submitted that a reading of the impugned judgment of the learned Additional Chief judicial Magistrate would show that he has acquitted the opposite party on the ground that the prosecution witnesses failed to establish that the house and the land were under the possession of the Mosque Committee and on the ground that no witness had found the accused/opposite party committing the alleged trespass and taking forcible possession of the disputed land and house. Mr. Shariff in particular pointed out that the learned Additional Chief Judicial Magistrate in his impugned judgment has observed that Md. Shariff Ali who Used to realize the rents on behalf of the Mosque Committee from the four tenants who were in occupation; of the house in question had not been examined and none of the tenants who were possessing the house had been examined by the prosecution. Mr. Shariff, learned counsel for the petitioner, argued that had the learned Addl. Chief Judicial Magistrate allowed the petition under Section 311, Cr.P.C. filed by the petitioner on 26-4-90, the aforesaid material witness Md Shariff Ali, Ex-Secretary, Srinagar Maszid Committee would have been examined by the prosecution and the lacuna, if any, in the evidence of the prosecution would have been removed. Mr. Shariff further pointed out that an offence of criminal trespass as defined in Section 441, IPC, does not only include the act of entering into or upon ,a property in the possession of another, but also includes the act of unlawfully remaining in the property of another. According to Mr. Shariff, therefore, even if there was no-evidence on behalf of the prosecution before the trial Court of the accused having entered into the property belonging to the petitioner and donated to the Mosque Committee, there was cleat evidence that the opposite party unlawfully remained in the said property belonging to the petitioner and donated to the Mosque Committee. He further contended ,that the accused/opposite party .therefore committed a criminal trespass by having remained in the house or building or the land in question unlawfully and that he had in fact committed the offence of house trespass as defined in Section 442, I.P.C.
5. It is true as has been submitted by Mr. Shariff, learned counsel for the petitioner, that the offence of criminal trespass would also cover an act of unlawfully remaining in a property belonging to another, but a reading of Section 441, IPC, quoted hereinbelow, would show that such act of remaining unlawfully in a property belonging to another by itself will not amount to criminal trespass.
441. Criminal Trespass - Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or anhoy 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 is said to commit "criminal trespass
442. House-Trespass'- Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass.
Section 441, IPC quoted above would show that it is only when a person unlawfully remains in a property of another person "with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence" that an offence of criminal trespass is committed. While there may be evidence in the present case that the accused/opposite party has unlawfully remained in the property belonging to the petitioner or that of the Mosque Committed to whom the petitioner is said to have donated the property, there is no evidence whatsoever that the accused/opposite party remained there with intent to intimidate, insult or annoy the petitioner or the Mosque Committee or with intent to commit an offence; rather the learned Additional Chief Judicial Magistrate in the impugned judgment has noted that the petitioner who was examined as P.W. 1 did not say anything about any threatening to him by the opposite party and even admitted that he was not present at the time of occurrence and that charge of criminal intimidation had not been proved against the opposite party. In the absence of any evidence of any criminal intent on the part of the opposite party/accused no offence of criminal trespass can be held to have been made out against the opposite party, and in the absence of evidence of criminal trespass no offence of house trespass can be held to have been established against the accused/opposite party as the very language of Section 442, IPC quoted above, would show that house-trespass is criminal trespass in respect of a building, tent or vessel Used as a human dwelling or any building, used as a place for worship, or as a place for the custody of property.
6. Coming now to the contention of Mr. Sheriff!" that had the petition of the petitioner under Section 311, Cr. P.C. filed on 26-4-1990 been allowed by the learned Additional Chi Judicial Magistrate, the lacuna in the evidence of the prosecution, if any, would have been removed, I am of the opinion that since the trial of the case by the trial Court is already over and a judgment of acquittal has been delivered as far back as on 10-7+90, it will not proper for this Court in exercise of power of revision to Set aside the said judgment and remand the> matter back to the learned Additional Chief Judicial Magistrate for examination of the witnesses as prayed for by the petitioner in his application under Section 311 of the Code of Civil Procedure at this late stage. That apart, the real grievance of the petitioner as well as the Mosque Committee, if any, is with regard to the continued occupation of the accused/opposite party of the land arid the house said to be belonging to the petitioner and donated to the Mosque Committee and the remedy, if any, of the petitioner and the said Mosque Committee is to establish their right, title and claim compensation and recover possession of the said land the house by a civil suit against the, opposite party. In case, such a civil suit is filed by the petitioner or the Mosque Committee or any other party, the same shall be decided on its own merit independent of the impugned judgment dated 10-7-90 of the learned Addl. .Chief Judicial Magistrate, Kamrup, Guwahati in GR Case No. 3174/86 as well as this judgment in the present criminal revision
7. With the aforesaid observations, this criminal revision is disposed of