Court No. - 47
Case :- CRIMINAL MISC. WRIT PETITION No. - 21815 of 2019
Petitioner :- Devendra Kumar And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Uma Nath Pandey Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J.
Hon'ble Virendra Kumar Srivastava,J.
1. Heard learned counsel for the petitioner; learned A.G.A. for the respondents 1 and 2; and perused the record.
2. The instant petition seeks quashing of the first information report (for short F.I.R.) dated 18.07.2019 registered as Case Crime No.826 of 2019 at P.S. Surajpur, District Gautam Budh Nagar, under section 447 IPC.
3. The impugned FIR has been lodged by an officer of the Greater Noida Industrial Development Authority, Gautambudh Nagar (for short the Authority) by alleging that the petitioners are unauthorizedly raising constructions and developing colony over plot No.939 Mi at village Tilpata, which falls within the notified area of the Authority, without obtaining prior sanction for such development.
4. The petitioners have challenged the impugned FIR on two grounds: (a) that the petitioners were developing their own land therefore no offence of criminal trespass is made out; and (b) that no notice as contemplated by section 441 IPC as applicable in the State of UP was served before lodging the FIR. It has been pleaded that, admittedly, in the revenue records plot no.939 Mi is recorded in the name of the petitioners (the accused) therefore no offence punishable under section 447 IPC is made out. In support thereof Khatauni extract of 1421-1426 F has been annexed as Annexure 2 to the petition.
5. On 24.09.2019, following order was passed:-
"Heard learned counsel for the petitioner and Sri S.R. Pandey, learned AGA.
It is submitted by learned counsel for the petitioner on the strength of the averments made in paragraphs 13 and 14 of the writ petition that lodging of the impugned FIR was not preceeded by any statutory notice as contemplated under Section 441 IPC (Amended by the State).
Sri S.R. Pandey, the learned AGA seeks time to obtain instructions in the matter.
Put up as fresh on 17.10.2019.
Till then no coercive measure shall be taken against the petitioner in case crime No. 826 of 2019 under Section 447 IPC at P.S. Surajpur, District Gautam Buddh Nagar.
Copy of the order be provided to Sri S.R. Pandey, the learned AGA, forthwith.
Sri S.R. Pandey learned AGA for the State also undertakes to intimate about this order to the learned counsel for the NOIDA Development Authority, in writing, within three days who in turn shall also obtain instructions in the matter."
6. Pursuant to the above order, a short counter affidavit has been filed. In the counter affidavit it has been pleaded that the Authority in exercise of power under Section 10 of the U.P. Industrial Areas Development Act, 1976 has already issued a notice on 09.07.2019 (Annexure CA-1) seeking removal of unauthorized constructions, which can be treated as a notice contemplated by section 441 IPC, and since the petitioners have not acted upon the notice within the time specified in the notice, the FIR is maintainable.
7. Learned A.G.A. pointed out that the notice dated 09.07.2019 clearly spell out that the accused must remove the constructions and restore the land to its original state. He also urged that the amended provisions of section 441 I.P.C., as applicable in the State of Uttar Pradesh, make unauthorized use of property also an offence, if such unauthorized usage is not stopped despite notice. He submitted that since notice was sent to remove the unauthorized constructions and to restore the land to its original state, regardless of the fact that the petitioners are the owner of Plot No. 939 Mi, since constructions have been raised unauthorizedly, offence punishable under Section 447 I.P.C is made out from a bare perusal of the impugned FIR.
8. Learned counsel for the petitioner submitted that since it has not been disputed that plot No.939 Mi is owned and possessed by the petitioners and their name is recorded in the revenue records, the offence punishable under section 447 IPC is not made out even if the constructions are illegal. Hence, the impugned FIR is liable to be quashed.
9. We have considered the rival submissions and have perused the record carefully.
10. Section 447 IPC provides that 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. Section 441 IPC, as applicable in the State of Uttar Pradesh, vide U.P. Act No.31 of 1961, defines criminal trespass as follows:-
"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, 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."
(Emphasis Supplied)
11. A bare perusal of the provisions of section 441 IPC would reveal that it is in two parts. The first part relates to a person who enters into or upon property in possession of another with an 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 an intent to commit an offence. The second part relates to a person who has 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 unauthorized possession or making unauthorized 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.
12. In both parts of section 441 IPC, the use of the words “such property” is of extreme significance and when the provision is read as a whole, one would find that the term “such property” refers to that what is described in the opening part, that is “property in the possession of another”. The above interpretation gets strength from the use of the phrase “that another person” while describing the person competent to give notice to withdraw from such property or its possession or use. Thus, in our considered view, the second part would become applicable where a person having entered into a property in the possession of another person with the intention of taking unauthorized possession or making unauthorized 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.
13. In the instant case, the offence of criminal trespass as defined in the first part of section 441 I.P.C. is not made out because admittedly the petitioners have not entered into or upon property of another person but are in possession of their own property as owner thereof. Likewise, no offence would be made out under the second part because the petitioners do not retain possession or maintain use of the property of another. Indisputably, the petitioners are the owner and in possession of Plot No. 939 Mi. They have not entered into or upon property in possession of another person. Under the circumstances, even if the petitioners raise constructions, which may be unauthorized, they would not be liable for an offence of criminal trespass punishable under section 447 I.P.C.
14. It may be noticed that the land pertaining to plot no.939 Mi in the revenue records is recorded in the name of the petitioners. Otherwise also, it is not the case of the informant that plot No.918 is the land of the Authority unlawfully occupied or possessed by the accused-petitioners. Under the circumstances, the essential ingredients of an offence punishable under section 447 IPC are not made out.
15. Consequently, the writ petition is allowed. The impugned first information report is quashed. The quashing of the first information report shall be without prejudice to the rights of Greater Noida Industrial Development Authority to take recourse to such measures or such proceedings against the petitioners in respect of alleged unauthorized constructions raised by them, as the law may permit. There is no order as to costs.
Order Date :- 27.11.2019 AKShukla/-