Allahabad High Court
Ramendra Gupta vs State Of U.P. Thru. Prin. Secy. Home ... on 26 July, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2024:AHC-LKO:50991 Court No. - 30 Case :- APPLICATION U/S 482 No. - 514 of 2024 Applicant :- Ramendra Gupta Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Secrt. Lko. Counsel for Applicant :- Purnendu Chakravarty,Pranjal Jain Counsel for Opposite Party :- G.A. Hon'ble Om Prakash Shukla,J.
(1) Heard Shri Purnendu Chakravarty, learned Counsel for the applicant and Shri Arvind Kumar Tripathi, learned AGA for State-respondent.
(2) This application under Section 482 Cr.P.C. has been filed by the applicant, Ramendra Gupta, seeking to set-aside the cognizance and summoning order dated 05.08.2023 passed by learned Chief Judicial Magistrate, Lucknow as well as of Chargesheet No. 2 dated 14.07.2023 along with consequential proceedings arising out of FIR No.0370 of 2021 under Section 447 IPC, Police Station Gomti Nagar Extension, District Lucknow.
(3) Brief facts of the case are that one Indu Nigam had filed an application under Section 156 (3) Cr.P.C. before the Court of Chief Judicial Magistrate, Lucknow on 14.09.2021, which was registered as Misc. Case No. 2908 of 2021. In her application, complainant had alleged that land, bearing Khasra No. 132 and 134 situated at Gram Lonapur, Tehsil Sadar, District Lucknow is ancestral land of her late husband Mr. Jagdish Narayan as it is registered in revenue records under the name of her late husband as well as her late brother-in-law. It was also alleged that one small room/store room is built on the aforesaid land which is surrounded by boundary wire. It was alleged that the applicant, who is the the owner of land, bearing Khasra No. 130 located at Gram Lonapur, has illegally occupied the aforesaid land of the complainant with ill intentions. It was also alleged that on 26.08.2011, when the applicant along with co-accused Sunil Contractor and 3-4 unknown persons tried to occupy the aforesaid land of the complainant, the son of the complainant tried to stop them, then, co-accused Sunil Contractor intimidated her son and told him that his friend Ramendra Gupta (applicant) is occupying the aforesaid land and the construction of boundary wall will not stop. Consequent thereupon, the complainant had filed a complaint at police station Gomti Nagar Extension, Lucknow but as no action was taken upon the said complaint, she lodged a complaint on 27.08.2021 at Jan Sunvai Portal, subsequent to which, the complainant was called upon at concerned police station and was told to settle the dispute with the accused persons. It was also alleged that on 07.09.2021, when the complainant along with her visited the aforesaid ancestral property, she was intervened and surrounded by the applicant, co-accused Sunil Contractor and 15-20 other persons, who threatened her of her life. Thereafter, the complainant informed the alleged incident to police station Gomti Nagar Extension, Lucknow, however, no action was taken by the concerned authorities and as such, she filed the application under Section 156 (3) Cr.P.C. before the Court of Chief Judicial Magistrate, Lucknow.
(4) Appraising the aforesaid contents of the complaint, the Chief Judicial Magistrate, Lucknow, vide order dated 16.10.2021, directed to lodge F.I.R. against the applicant, Sunil Contractor and 3-4 unknown persons and investigate the matter, on the basis of which, F.I.R. No. 0370 of 2021 dated 19.10.2021 under Sections 147, 447, 511 and 506 I.P.C. was lodged against the applicant, Sunil Contractor and 3-4 unknown persons and the police conducted its investigation.
(5) According to the applicant, after conducting due investigation, the Investigating Officer found no evidence against the applicant for the charges alleged in the F.I.R. as it was found that the location of the complainant and her son that of the applicant were nowhere near the place of incident on the alleged date of incident and it was only Sunil Kumar who was carrying out the construction work on the land of the complainant, however, Chargesheet No.1 dated 13.06.2022 under Section 447 I.P.C. was filed against Sunil Kumar Contractor and 3-4 unknown persons. Subsequent to this chargesheet no. 1, Assistant Police Commissioner discarded the entire investigation and directed to re-investigate the allegation of the aforesaid F.I.R. on certain points. In pursuance thereof, investigation was handed over to Mr. Devanand Singh, who, after conducting investigation, submitted Chargesheet No.2 dated 14.07.2023 arraying the applicant as an accused person along with Sunil Contractor in the list of accused persons. On receipt of charge-sheet no.2 dated 14.07.2023, the Chief Judicial Magistrate directed to register the case and summoned the accused persons including the applicant for 25.09.2023 vide order dated 05.08.2023. It is this order dated 05.08.2023, which has been challenged in the present application under Section 482 Cr.P.C.
(6) Drawing attention to Section 447 I.P.C. and Section 441 I.P.C., learned Counsel for the applicant has submitted that Section 447 I.P.C. provides for the punishment of criminal trespass with imprisonment of term which may extend to 3 months or with fine which may extend to Rs.500 or with both. He submits that in order to attract criminal trespass under Section 447 I.P.C., there is a mandatory requirement under Section 441 I.P.C. (U.P. Amendment) to serve upon the accused a notice, in writing, calling upon him to withdraw from the unauthorized possession or use of property of another person and only upon failure to withdraw from such property or its possession or use, after such notice is duly served upon him, that the offence of criminal trespass will be attributable to such accused person. Submission is that without the aforesaid compliance in the present case, no case under Section 447 I.P.C. can be said to be made out against the applicant.
(7) It is submitted by the learned Counsel for the applicant that there is nothing on record/mentioned either in the F.I.R., chargesheet No.1 or charge-sheet no.2 that the notice was served upon the applicant as provided under Section 441 (U.P. Amendment) prior to lodging the F.I.R. He submits that while taking cognizance against the applicant under Section 447 I.P.C. and summoning him vide impugned order dated 05.08.2023, the trial Court has proceeded in a hasty manner without determining and satisfying itself regarding the fulfillment of essential requirement under Section 411 I.P.C. as provided under U.P. Amendment. Thus, he prays that since there is absence of any notice being served upon the applicant, the impugned cognizance and summon order dated 05.08.2023 passed by the trial Court being abuse of process of law is liable to be set-aide.
(8) To strengthen his submission, learned Counsel for the applicant has relied upon the judgment passed by a Co-ordinate Bench of this Court in Application u/s 482/378/407 No. 1421 of 2004 : Rahtu Lal alias Rahtu Ram alias Divyanand and 4 other Vs. State of U.P. and another (decided on 25.03.2015).
(9) Per contra, learned Additional Government Advocate, on the basis of instructions, has submitted that notice was not served to the applicant prior further investigation or prior lodging of FIR.
(10) Having regard to the rival submissions of the learned Counsel for the parties and gone through the record available before this Court, the point which falls for this Court determination as to whether in order to attract criminal trespass under Section 447 I.P.C., notice as required under Section 441 I.P.C. (U.P. Amendment) is mandatory; and whether the trial Court has lost sight of the fact in not considering the legal requirement of notice under Section 441 I.P.C. while summoning the applicant under Section 447 I.P.C. by means of the impugned order.
(11) Undisputed facts are that before lodging the FIR in question, no notice in writing to the applicant calling upon the applicant to withdraw from the property of the complainant has been sent to the applicant. 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'. Sections 441 IPC (U.P. Amendment Act) and Section 447 I.P.C. 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."
"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."
(12) 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 judgement of Rahtu Lal alias Rahtu Ram alias Divyanand (supra) relied upon by the applicant. Para-10 of this judgment is reproduced as under :-
"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."
(13) In view of the aforesaid, it is explicit that until and unless proper notice as required under 441 IPC is served upon the trespasser, criminal prosecution under Section 447 IPC cannot be launched. In the instant case, legal requirement as provided under Section 441 IPC for sending of notice to trespasser as in the present case the applicant is not fulfilled, therefore, criminal prosecution started against the applicant on the basis of charge sheet no. 2 submitted in the matter and taking cognizance and summoning the accused thereof, is the abuse of the process. The learned trial Court, while passing the impugned order, without considering the aforesaid provisions of Section 441 I.P.C. (U.P. Amendment) has taken cognizance on the chargesheet no.2 and summoned the applicant vide impugned order dated 05.08.2023, which is contrary to the decision of Rahtu Lal alias Rahtu Ram alias Devyanand (supra). Thus, the impugned order dated 05.08.2023 is liable to be set-aside.
(14) In view of the aforesaid, the application is allowed. The impugned dated 05.08.2023 passed by learned Chief Judicial Magistrate, Lucknow as well as the proceedings initiated in pursuance of chargesheet No. 2 dated 14.07.2023 arising out of FIR No.0370 of 2021 under Section 447 IPC, Police Station Gomti Nagar Extension, District Lucknow are hereby set-aside.
(Om Prakash Shukla, J.) Order Date :- 26.7.2024 Arnima