Court No. - 45
Case :- APPLICATION U/S 482 No. - 46553 of 2018 Applicant :- Dhamman Singh Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Daya Shanker Pandey Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard learned counsel for the applicant and the learned A.G.A. for the State.
Submission is that the implication of the applicant under Section 447 IPC in charge-sheet is unwarranted. In view of the judgement of this Court in the case of Rahtu Lal Rahtu Ram @ Divyanand and others passed in Application U/2 No. 1421 of 2004, this Court has held that for implication under Section 447 IPC prior notice is mandatory as per U.P. Amendment Act, 1961 and reliance has been placed upon paragraph Nos. 5.7 and 11 quoted below:-
"5.7 In the above facts and circumstances, applicants cannot be termed as trespassers nor they can be tried under the provisions of Section 447 I.P.C., because no offence under that section is made out against the applicants. Since notice under amended Section 441 I.P.C. is mandatory requirement but the same has not been completed, because no notice under Section 441 I.P.C. is ever sent to applicants. Due to non compliance of this mandatory provision, offence of "criminal trespass" which has been defined in Section 441 I.P.C. has not been made out, therefore, charge sheet filed against applicants under Section 447 I.P.C. is legally not sustainable.
11. In the above facts and circumstances, I am of the considered view that filing of charge sheet under Section 447 I.P.C. against the applicants is a serious abuse of process of the Court which must be prevented. Because on the basis of such legally defective charge sheet there is no possibility to end the case in conviction of the applicants and whole exercise before the Trial Court will be mere wastage of time and resources in such futile exercise. "
Matter requires consideration.
Notice on behalf of opposite party no. 1 has been accepted by learned A.G.A.
Issue notice to opposite party no.2 returnable at an early date.
Opposite parties may file their counter affidavits within four weeks. Rejoinder affidavit may be filed within two weeks thereafter.
List thereafter.
Further proceedings in Criminal Case No. 22297 of 2018, arising out of Case Crime No. 154 of 2018, under Sections 447 IPC and 3 Prevention of Damage to Public Property Act, 1984, Police Station Phase- IIIrd, District Gautam Budh Nagar, pending in the Court of Chief Judicial, Magistrate, Gautam Budh Nagar, shall remain stayed against the applicant till the next date of listing.
Order Date :- 20.12.2018 Ruchi Agrahari