Allahabad High Court
Dr. Pradeep Kumar vs State Of U.P. And Another on 25 January, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Neutral Citation No. - 2024:AHC:12955 Court No. - 93 Case :- APPLICATION U/S 482 No. - 41999 of 2019 Applicant :- Dr. Pradeep Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Hitesh Pachori,Lavkush Kumar Shukla,Utkarsh Birla Counsel for Opposite Party :- G.A.,Asim Kumar Singh Hon'ble Arun Kumar Singh Deshwal,J.
1. Heard learned counsel for the applicant, Sri Asim Kumar Singh, learned counsel for the opposite party no.2 and Sri Rajeev Kumar Singh, learned AGA for the State.
2. Present application u/s 482 Cr.P.C. has been filed for quashing the entire criminal proceeding as well as the charge sheet dated 05.09.2017, including the cognizance order dated 30.05.2019 in Case No. 30028 of 2019 arising out of Case Crime No.582 of 2010, under Sections 448, 504, 506 IPC, Police Station- New Agra, District Agra pending in the Court of Chief Judicial Magistrate, Agra.
3. Contention of learned counsel for the applicant is that it is undisputed that the adjoining plot, i.e. 200 sq mtr, belongs to the applicant's father, and the first informant is the applicant's maternal uncle. The present proceeding is malicious, as several disputes have been pending between the parties. It is further submitted that as per Section 441 of IPC (U.P. Amendment), there is a requirement for sending a notice to call upon the encroacher to withdraw himself from the property. It is further submitted that no offence under Section 448 IPC is made out because it is the admitted case of the informant that it was the plot, while Section 448 IPC is regarding trespassing in the house. He further submits that the requirement for sending notice before lodging the FIR under Section 441 IPC is mandatory.
4. Counsel for the applicant has relied upon the order of the co-ordinate Bench of this Court in Somnath Paul vs Ram Bharose 1990 (2) JIC 541, as well as the order dated 10.05.2017 passed by the Co-ordinate Bench of this Court in Application u/s 482 Cr.P.C. No. 8724 of 2010 (Dev Shankar Shukla @ Sajjan vs State of U.P. and other). It is also submitted that the final report was initially submitted on 12.08.2011; thereafter, after almost five years, a protest petition was filed on 06.08.2016, which was allowed on 10.04.2017, and police were directed to conduct further investigations. Thereafter, police submitted a charge sheet on 05.09.2017 which is impugned in the present case, but during further investigation all the witnesses have not made allegations regarding offence under Sections 504, 506 IPC.
5. Per contra, learned counsel for the opposite party No. 2 submits that the requirement of sending a notice under Section 441 is not mandatory and the offence is made out against the applicant because he has encroached over the plot of the first informant.
6. Learned AGA also adopted the argument of counsel for the opposite party no.2 and submits that from perusal of the record prima face case is made out against the applicant, therefore, no ground for interference is made out.
7. Having heard the learned counsel for the parties and after perusal of the record, this fact is undisputed that before lodging the FIR in question, opposite party no.2 had not sent any notice in writing to the applicant calling upon the applicant to withdraw from his property. The criminal trespass is defined under Section 441 IPC (U.P. Amendment). Section 441 IPC provides that if any person take unauthorised possession or makes unauthorised use of property of another person then if he fails to withdraw from such property on receiving the written notice of the owner of that property calling upon him to withdraw from such property, he is said to commit 'criminal trespass'. Section 441 IPC (U.P. Amendment Act) is being quoted hereinbelow;
"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 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 Laws (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."
8. Therefore, it is explicitly clear from the U.P. Amendment of Section 441 IPC that the offence of criminal trespass is said to be committed only when the alleged trespasser, despite receiving written notice of the owner of the property calling upon the alleged trespasser to vacate his property, did not withdraw from the property. This legal position was also reiterated in the judgements of Somnath Paul (supra) as well as in Dev Shankar Shukla @ Sajjan (supra) relied upon by the applicant.
9. In the present case, it is admitted by the first informant in his statement recorded under Section 161 Cr.P.C. that he had not given any notice to the applicant to vacate his plot; therefore, in view of the above legal position, an offence of criminal trespass under Section 441 is not made out.
10. For making out offence of 'house trespass' under Section 448 IPC, there must be criminal trespass in the property which is used as a human dwelling, or as a place of worship as custody of property. House trespass is defined in Section 442 IPC which is being quoted as under;
"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.
Explanation- The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass."
11. From Section 442 IPC, it is clear that for the offence of house trespass there must be criminal trespass. If there is no criminal trespass under Section 441 IPC then the case under Section 448 IPC will also not made out. Even otherwise, Section 448 IPC applies where there is a trespass in the house, but in the present case, the allegation is for trespassing over a plot, therefore on the basis of this reasoning also offence under Section 448 IPC is not made out.
12. So far as Section 506 IPC is concerned, in the statement of the first informant dated 28.07.2017, there is no allegation of criminal intent to provoke breach of peace or criminal intimidation, therefore, an offence under Section 504 IPC is not made out. It is further clear from the statement of the first informant, as well as his brother Ashok Kumar, that the civil dispute between the father of the applicant and opposite party no.2 has been pending, therefore, the impugned proceeding also appears to be malicious.
13. So far as offence under Section 504 IPC is concerned, this section requires not only utterance of abusing word but there should have been an act or conduct amounting to intentional insult. Section 504 IPC is extracted hereinbelow for reference;
"504. Intentional insult with intent to provoke breach of the peace-Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
14. The Hon'ble Apex Court in the case of B.R. Meena vs Mangaldas Chimanlal Barot, 1997 Supplement SC case 597 as well as in the case of Fiona Shrikhande vs State of Maharastra, 2013 (14) SCC 44 observed that mere utterance of abusing word by itself does not constitute offence under Section 504 IPC. Essential requirements are, that accused must intentionally insult and such insult must give provocation to any person and further he must have requisite knowledge that such provocation will result in breach of public peace or commission of any other offence. Para 13 of the judgement of Fiona Shrikhande (supra) is being quoted hereinbelow;
"13. Section 504 IPC comprises of the following ingredients viz. (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC."
15. Therefore, from the above legal position, it is clear that for commission of offence under Section 504 IPC mere abusing is not sufficient unless the allegation itself shows that there was intention or knowledge that such provocation will be caused. But in the present case, only allegation is when the opposite party no.2 and his brother objected the applicant against his encroachment over their property then he abused them without mentioning any further. Therefore, from the allegations made in the FIR as well as in the statement, no offence under Section 504 IPC is made out against the applicant.
16. Similarly, for the offence under Section 506 IPC, there must be criminal intimidation by threatening of causing injuries or death to cause alarm to person and there must be intention to cause such criminal intimidation and mere expression of any word without any intention to cause alarm would not be sufficient to constitute the offence under this section. Section 506 IPC is being quoted as below;
"Section 506. Punishment for criminal intimidation. ?Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.- and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
17. Hon'ble Apex Court in the case of Manik Taneja and another vs State of Karnatka and other; 2015 (7) SCC 423 observed that mere utterance of any word without intention to cause alarm would not be sufficient for making out offence under Section 506 IPC. Para 12 of the judgement of Manik Taneja (supra) is being quoted as below;
"12. In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the appellants to cause alarm in the mind of the second respondent causing obstruction in discharge of his duty. As far as the comments posted on Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of the appellants posting a comment on Facebook may not attract ingredients of criminal intimidation in Section 503 IPC."
18. It is clear from the analysis discussed above that mere utterance of expression of any word without any intention to cause any alarm will not be sufficient for the offence under Section 506 IPC. In the present case, the first informant and his brother in their statements under Section 161 Cr.P.C. specifically said that on being objected the trespass on the part of the applicant, they were threatened to death by the applicant without mentioning anything which could show that the aforesaid threatening was made with intention to cause alarm not at the spur of the moment during exchange of words between first informant and applicant. The statement of witness of prosecution Moolchand did not support the exact word of opposite party no.2 and his brother but it was mentioned in the statement of witness Moolchand that on being objected by the opposite party no.2, the applicant threatened him. Therefore in totality, there is no sufficient material to show any threat was given to opposite party no.2 by the applicant with intention to cause alarm or omit any act which he was legally entitled to do. Therefore, from material on record, no offence under Section 506 IPC is made out against the applicant.
19. From above analysis based on perusal of record as well as legal aspect discussed above, no offence under Sections 448, 504 and 506 IPC is made out against the applicant and it is admitted case of the opposite party no.2 that though the applicant and opposite party no.2 are relatives but civil disputes have been pending between them, therefore impugned proceedings appear to be malicious.
20. In view of the above, the criminal proceedings of the Case No.30028 of 2019, arising out of Case Crime No. 582 of 2010, under Sections 448, 504, 506 IPC, Police Station New Agra, District Agra pending in the court of CJM, Agra is hereby quashed.
21. Accordingly, the present application is allowed.
Order Date :- 25.1.2024 A.Kr.