Rashid Ahmad v. Rashidan — 1980 DIGILAW 737 (ALL)

JUDGMENT S. Malik, J. 1. RASHID Ahmad has come up in revision against the order dated 26-2-1980 of the Additional Sessions Judge, Saharanpur allowing Criminal Revision No. 227 of 1979 filed before the Sessions Judge be the opposite-parties. 2. THE relevant facts are that there was a dispute between the applicant and opposite-party No. 1 Rashidan, regarding possession of house. It led to proceedings under section 145 of the GrPC and ultimately the Magistrate concerned by his order dated 5-4-1977 held that the applicant was in possession of the disputed house on the relevant date. On 27-3-1979 the applicant filed a complaint against opposite-parties 1 to 6 alleging that the opposite-party No, 1, Rashidan, with the help of the others forcibly took unauthorised possession of the disputed house on 4-2-1976 during the pendency of the case under section 145 of the CrPC and since then inspite of service of a notice requiring her to vacate the house she has continued to remain in possession and has, thus, committed 'criminal trespass' punishable under section 448 of the Indian Penal Code. 3. THE learned Magistrate issued process against the opposite-parties, who appeared before him and took the plea that the complaint was time barred in view of section 468 of the CrPC. It was urged that according to the complaint, the complainant was dispossessed on the 4th February, 1976 and the complaint was not filed till the 27th of March, 1979 long after the period of one 'year's limitation provided in section 468 (1) (b) of the CrPC. The learned Magistrate rejected the objection holding that the complaint was not time barred. The opposite-parties, there after, went up in revision before the learned Sessions Judge, who upheld their objection and held that the complaint was time barred. 4. THE question before the court is whether the period of limitation of one year should be reckoned from the 4th of February, 1976 the alleged date of dispossession of the applicant. 'Criminal trespass' has been defined in Section 441 of the IPC. It is in two parts. The first part lays down "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" commits 'criminal trespass'. 'Criminal trespass' has been defined in Section 441 of the IPC. It is in two parts. The first part lays down "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" commits 'criminal trespass'. The second part lays down "or having lawfully entered into or upon such property, unlawfully remains there with intent there by to intimidate, insult or annoy any such person, or with intent to commit an offence." 5. IT is clear from the language of both the parts of Section 441 of the IPC that the main purpose or intention for entering into or upon such property must have been either to commit an offence or to intimidate, insult or annoy any person in possession of such property. And when the accused had entered into or upon such property lawfully, his possession would become 'criminal trespass' if he unlawfully remains in possession of the property with the intention of committing an offence or to intimidate, insult or annoy the person dispossessed. In either case, the main intention or purpose had to be either to commit an offence or to insult, annoy or intimidate the person in possession or the person already dispossessed. The question was considered by the Supreme Court in Mathri v. State of Pun jab, AIR 1964 SC page 986 at page 990. The Supreme Court observed : "The proposition that every person intends the natural consequences of his act, on which the learned counsel relies, is often a convenient and helpful rule to ascertain the intention of persons when doing a particular act. It is wrong however to accept this proposition as a binding rule which must prevail on all occasions and in all circumstances. The ultimate question for decision being whether an act was done with a particular intention all the circumstances including the natural consequence of the action have to be taken into consideration. it is legitimate to think also that when Sec. 441 speaks of entering on property "with intent to commit an offence, or to intimidate, insult or annoy" any person in possession of the property it speaks of the main intention in the action and not any subsidiary intention that may also be present." 6. it is legitimate to think also that when Sec. 441 speaks of entering on property "with intent to commit an offence, or to intimidate, insult or annoy" any person in possession of the property it speaks of the main intention in the action and not any subsidiary intention that may also be present." 6. FROM what has been discussed,, it is clear that in the present case even if the allegations made In the complaint were assumed to be true, no 'criminal trespass' could be said to have been committed by the opposite party if the U. P. Amendment to section 441 of the IPC was not there. It may be pointed out that according to the allegations in the complaint dispute beween the parties was regarding possession of the house and it is not the complaint case that the opposite- party took possession or continued to remain in possession with the intention of committing any offence or with the intention to intimidate, insult or annoy the applicant. A perusal of the U. P. Amendment will, however, show that a 'civil trespass' would become a 'criminal trespass', even though the trespasser had entered into possession of the property merely with the intention of taking unauthorised possession or making unauthorised use of such property, if the trespasser failed to withdraw from such property or its possession or use when called upon to do so by a notice in writing by the person dispossessed. In this case, according to the allegations in the complaint, the opposite-party No. 1 entered into an unauthorised possession of the property on 4th February, 1976 and even after the applicant duly served a written notice on the opposite-party No. 1 on 27th February, 1979, the opposite-party No. 1 continued to remain in possession. In view of the allegations in the complaint the alleged trespass made by the opposite-party No. 1 on 4th of February, 1976 became 'criminal trespass' only after the service of the notice and on the expiry of the date specified therein on which the trespasser was required to vacate the house. In the instant case, the complaint could not be said to have become time barred as the complaint was filed well within a year after the alleged service of the notice and the date specified therein. 7. THE position is, however, different as regards the opposite-parties Nos. 2 to 6. In the instant case, the complaint could not be said to have become time barred as the complaint was filed well within a year after the alleged service of the notice and the date specified therein. 7. THE position is, however, different as regards the opposite-parties Nos. 2 to 6. It is said that they abetted the offence of trespass committed by Rashidan by helping her to take unauthorised possession forcibly on 4-2-1976. No notice was served on them and there is no specific allegation about the nature of the abetment said to have been committed by them subsequently. As an offence punishable under sections 448/109 of the IPC is said to have been committed by the opposite-parties 2 to 6 on 4-2-1976 and it could not be said that the offence on their part was a continuing offence, the order passed by the learned Sessions Judge as regards these opposite-parties must be upheld. 8. THE criminal revision, therefore:, is partly allowed and the order passed by the learned Sessions Judge is set aside as regards opposite-party No. 1 and the complaint as regards Rashidan will be: deemed to have been filed within the period of limitation. This application is rejected and the complaint is, hereby, held to be time barred as regards opposite-parties 2 to 6. ---- Revision partly allowed.