Allahabad High Court
Puneet Kumar Sahni vs State Of U.P. Thru. Addl. Chief Secy. ... on 17 September, 2024
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:64067 Court No. - 13 Case :- APPLICATION U/S 482 No. - 8293 of 2024 Applicant :- Puneet Kumar Sahni Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Deptt. And Another Counsel for Applicant :- Karuna Shanker Rastogi Counsel for Opposite Party :- G.A. Hon'ble Saurabh Lavania,J.
Supplementary affidavit filed today is taken on record.
Heard learned counsel for the parties.
Present application has been filed for the following main relief:-
"For the facts, reasons and circumstances stated in the accompanying affidavit it is most humbly prayed that the Hon'ble Court may graciously be pleased to (i.) quash the summoning order dated 03.10.2023 passed by Chief Judicial Magistrate, Kheri and pending in the court of Nyayadhikari, Gram Nyayalaya Gola, District- Kheri in Criminal Case No. 229 of 2024, arising out of Case Crime No. 415 of 2019, under Section 447 IPC, Police Station- Gola, District- Kheri as contained in Annexure No. 1 to this application.
(ii.) Quash the charge sheet dated 01.11.2020 and order taking cognizance dated 03.10.2023 of Criminal Case No. 229 of 2024 arising out of Case Crime No. 415 of 2019, under Section 447 IPC, Police Station- Gola, District- Kheri as contained in Annexure No. 2 to this application."
Submission of learned counsel for the applicant for the purposes of causing interference in the pending proceedings by this Court in exercise of po0wer under Section 482 CrPC/Section 528 BNSS is to the effect that as per case set up in the FIR registered as Case Crime No. 415 of 2019 on 13.07.2019, the case of the prosecution against the applicant is to the effect that the applicant namely Puneet Kumar Sahni has encroached part of Gata No. 1914/5.520 hectare recorded as 'Talab' land to the extent of 0.0150 hectare. The Investigating Officer thereafter conducted the investigation and upon completion of investigation filed the charge sheet indicated therein that the offense against the applicant is made out under Section 447 IPC and thereafter, the Chief Judicial Magistrate, Kheri, without application of mind vide order dated 03.10.2023 summoned the applicant under Section 447 IPC.
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 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. 415 of 2019, quoted above, are hereby quashed.
Order Date :- 17.9.2024 (Manoj K.)