Allahabad High Court
Prashant Sharma vs State Of U.P. Thru. Addl. Prin. Secy. ... on 2 September, 2024
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:60141 Court No. - 13 Case :- APPLICATION U/S 482 No. - 7739 of 2024 Applicant :- Prashant Sharma Opposite Party :- State Of U.P. Thru. Addl. Prin. Secy. Home Deptt. Lko. And Another Counsel for Applicant :- Pramod Kumar Pandey,Prabhat Gupta,Sanjay Kumar Verma,Suraj Singh Visen Counsel for Opposite Party :- G.A. Hon'ble Saurabh Lavania,J.
Heard Shri Suraj Singh Visen, learned counsel for the applicant as well as learned A.G.A. for the State.
The present applicant has been filed by the applicant with following prayer "to quash the charge sheet No.01/2021 dated 17.03.2021 of Case Crime No. 647/2020 as well as cognizance order dated 26.06.2024 taken by Judicial Magistrate-III, Lucknow U/s- 427, 447 IPC, P.S. Sarojni Nagar, District Lucknow (State Versus Sushil Trivedi and others)."
Heard learned counsel for the applicant as well as learned A.G.A. for the State.
Submission of the learned counsel for the applicant is that proceeding of the aforesaid criminal case is not maintainable. Cognizance taken on the charge sheet submitted in the matter is illegal. Referring to the State of Uttar Pradesh Amendment of Section 441 IPC, it is further submitted that no notice was issued to the applicant prior to lodging of F.I.R. hence on this score also proceeding of the aforesaid criminal case is an abuse of the process of law. In support of his contentions, learned counsel for the applicant has placed reliance on the judgment of this Court in the case of Rahtu Lal @ Rahtu Ram @ Divyanand and others Vs. State of U.P. and another decided on 25.3.2005.
On the other hand, learned A.G.A. opposes the prayer.
Considered the aforesaid and perused the records.
In this matter charge sheet has been submitted for the offence under Section 447, 427 IPC, cognizance has been taken and trial was started without considering the effect of State of Uttar Pradesh Amendment in Section 441 IPC.
For proper appreciation of submissions raised by the learned counsel for the parties, it will be useful to quote the provision of Section 441 IPC, which is as under.
"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, o, 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 (U.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, Sec. 2 (w.e.f. 13.11.1961).] If the legal requirement contained under Section 441 IPC as amended vide State of Uttar Pradesh Amendment is taken into consideration, it is clear that until and unless proper notice as required under 441 IPC is served upon the trespasser, criminal prosecution cannot be launched.
Since legal requirement as provided under Section 441 IPC for sending of notice to trespasser is not fulfilled, therefore, criminal prosecution started on the basis of charge sheet submitted in the matter is the abuse of the process of law as has been held by this Court in the case of Rahtu Lal @ Rahtu Ram @ Divyanand and others (Supra).
Thus, the application is allowed.
The entire proceedings arising out of Case Crime No. 647/2020, quoted above, are hereby quashed.
Order Date :- 2.9.2024 Mohit Singh/-