JUDGMENT Saroj Bala, J.
1. By way of this application under Section 482 Cr.P.C., the applicants have prayed for quashing the proceedings of Criminal case No. 1310 of 2003-State v. Smt. Anita Mishra and Ors. under Sections 448 and 406 I.P.C., Police station Harbans Mohal, District Kanpur Dehat pending in the Court of A.C.M.M.-I, Kanpur Nagar.
2. The factual matrix of the case is as below:
The applicant No. 1 and opposite party No. 2 are daughter and father. The applicant No. 2 is maternal grand-mother and applicant No. 3 is husband of applicant No. 1. The F.I.R. was lodged by the opposite party No. 2 on 22.4.98 with the allegations that the disputed house was purchased by him with his own funds in the name of his wife who died in the year 1984. The opposite party No. 2 had two daughters out of which one died in February, 1992 and second daughter is applicant No. 1. It was alleged that on 30.4.1996, the applicant No. 1 married applicant No. 3 against the will of opposite party No. 2. After marriage the applicants started living in house of opposite party No. 2 and had taken possession of house-hold goods, ornaments and valuable documents. They refused to vacate the house and inducted tenants. It was alleged that opposite party No. 2 was ousted from the possession of the house. After investigation final report was submitted. The opposite party No. 2 filed protest petition. On going through the material available in the case-diary the Magistrate took cognizance for the offences under Sections 406 and 448 I.P.C. by the order dated 25.1.99.
3. The contention of the applicants is that the disputed house belonged to the mother of applicant No. 1. The opposite party No. 2 became a Sadhu after the death of her mother and she as well as her sister were brought up by their maternal grand-mother. Opposite party No. 2 threatened to take forcible possession of the house and she was compelled to file a suit for permanent injunction against opposite party No. 2. The interim injunction directing to maintain status-quo was issued on 27.3.98. The application moved under Order 39, Rules 1 and 2 C.P.C. was allowed by the order dated 10.3.99 and the opposite party No. 2 was restrained from selling the house in suit or causing any interference in the peaceful use and occupation of applicant No. 1. The temporary injunction order dated 10.3.99 was affirmed by the appellate court in Civil Misc. Appeal No. 151 of 1999 vide order dated 16.3.2001.
4. The civil suit was instituted on 18.2.98. The interim injunction order was granted on 27.3.98. The F.I.R. was lodged on 22.4.98 with an oblique object to pressurise the applicants to vacate the disputed house. The applicants have stated that the dispute is purely a civil nature and F.I.R. was lodged with malafide intention to harass the applicants. The allegations made in the F.I.R. do not constitute the offences under Section 406 and 448 I.P.C.. There was no entrustment of any property. The details of the ornaments, valuable documents and other house-hold goods alleged to have been misappropriated are not mentioned in the F.I.R.. The opposite party No. 2 has instituted suit against Mahesh Kumar Triwedi, one of the occupants. In the municipal record the name of applicant No. 1 is entered over the disputed house alongwith opposite party No. 2 her father.
5. The opposite party No. 2 has filed counter-affidavit stating that in proceedings under Section 482 Cr.P.C. this Court cannot consider the factual aspect of the matter and against the summoning order statutory remedy of revision under Sections 397, 401 Cr.P.C. is available. The revision against the summoning order would have been barred by limitation, therefore, the entire criminal proceedings have been challenged by the applicants. The applicants having not prayed for quashing the summoning order, the application is not maintainable and is liable to be dismissed.
6. Heard Sri Manish Tiwary, learned Counsel for the applicants, Sri K.K. Tripathi, learned Counsel for opposite party No. 2, learned A.G.A. and have perused the record.
The learned Counsel for the applicants submitted that on the death of mother the property was inherited by applicant No. 1 and her father, Opposite party No. 2 intended to cause interference in the possession of the applicants, civil suit for permanent injunction was instituted and temporary injunction granted in favour of applicant No. 1 was confirmed in Civil Misc. appeal preferred by opposite party No. 2. The applicant No. 1 being in possession of the disputed house in her own rights, no offence under Section 448 I.P.C. is made out. There was no entrustment of any property, ornaments or valuable documents to applicant No. 1 as such no offence under Section 406 I.P.C. is made out.
7. In order to constitute an offence entrustment of property or any dominion over the property, dishonest, misappropriation or conversion of that property by the person entrusted to his own use or dishonest use or disposal of that property or wilfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract made touching the discharge of such trust are essential ingredients. In order to make out the offence of criminal breach of trust proof of entrustment is essential. Section 441 I.P.C. defines criminal trespass. Entering into or upon property in the possession of another to commit an offence or to intimidate, insult or annoy any person in possession of such property constitute the offence of criminal trespass. Section 442 I.P.C. defines house trespass. A person by entering into or remaining in any building, tent or vessel used as a human dwelling of any building used as a place for worship, or as a place for the custody of property is said to commit house-trespass. Section 448 I.P.C. prescribes the punishment for house trespass. The aim or dominant intention of the accused for committing an offence of intimidation, insult or annoyance has to be established to constitute the offence of criminal trespass. The opposite party No. 2 is the father of applicant No. 1. Admittedly the wife of opposite party No. 2 and mother of applicant No. 1 was the owner of the disputed house. On the death of the wife opposite party No. 2 and his daughter applicant No. 1 inherited the property. The allegation that house was purchased by opposite party No. 2 in favour of his wife with his own funds is not a question for decision in - criminal proceedings. However, his contention did not find favour with the Civil court in Appeal No. 151 of 1999-Ram Pratap Tiwari v. Anita Mishra and Ors. The applicant No. 1 is co-owner to the extent of half share in the dispute property. The name of applicant No. 1 finds place alongwith opposite party No. 2 in the assessment of Nagarpalika. The F.I.R. and other material do not show the commission of offence of house trespass. There are no allegations that the applicants entered into the property with the intention to commit the offence of intimidation, insult or annoyance. As a matter of fact the applicant No. 1 being the daughter of opposite party No. 2 lived in the disputed house prior to her marriage and she remained in its possession after marriage in the year 1996. There was no entrustment of the ornaments, valuable documents to the applicants. The details of ornaments, valuable documents and house hold-goods have not been mentioned in the F.I.R.. The F.I.R. was lodged more than two months after the institution of civil suit by the applicant No. 1. The ingredients of Sections 406 and 448 I.P.C. are not made out. In view of the foregoing discussion, the institution of criminal prosecution in the present case is sheer abuse of the process of Court.
8. The inherent powers under Section 482 Cr.P.C. can be exercised to quash the proceedings: (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; (ii) where the allegations in the First Information Report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. The scope of exercise of power under Section 482 of the Code and the categories of cases where this Court may exercise its power under it relating to cognizable offences to prevent abuse of process of court or otherwise to secure the ends of justice have been set out by the Apex Court in the case of State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 (Cri) 426 as hereinunder:
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, it any, accompanying the First Information Report, do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the First Information Report or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the First Information Report do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the First Information Report or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with malafides and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
9. In State of M.P. v. Awadh Kishore Gupta (2004) 1 SCC, the Apex Court has held as follows:
The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arises. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All Courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipse esse non potest (when the law gives a person anything it gives him that without which it cannot the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in section itself. It is to be exercised ex debito justitiae to do read and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
10. In view of the Apex Court decision in Adalat Prasad v. Rooplal Jindal AIR 2004 Supreme Court 4674 the only remedy for challenging the summoning orders is under Section 482 Cr.P.C.
In the wake of foregoing discussion, the allegations made in the F.I.R. and the evidence collected in support thereof taken as a whole do not constitute the offences under Sections 406 and 448 I.P.C.
11. With the result the application is allowed. The entire proceedings of the above mentioned Criminal case No. 1310 of 2003 including the summoning order dated 25.1.1999 are quashed.