JUDGMENT Dr.D.P.CHOUDHURY, J. - This is an application filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as “the Code) to quash the order dated 18.02.2006 of taking cognizance of offence under Section 447 of the Indian Penal Code (in short ‘the IPC’) passed by the learned Sub-divisional Judicial Magistrate, Bhubaneswar in I.C.C. No.475 of 2006 and issuance of process against the present petitioners. 2. Mr. Pattnaik, learned Counsel for the petitioners submitted that Section 447 IPC would not apply to the facts and circumstances of the present case as the dispute, involved in this writ petition, is civil in nature. According to him, C.S. No.195 of ;2005 was filed by the present party before the learned Civil Judge (Senior Division), Bhubaneswar against the petitioners for eviction but the same fact has not been stated in the complaint for which the same is liable to be rejected. 3. Mr. Pattnaik, learned Counsel for the petitioners further submitted that the complainant is not the absolute owner of the shop room in question but a co-owner for which the proceeding at his instance only is not maintainable. According to him, the Orissa Amendment of Section 447 of the IPC is not attracted in this case because the petitioners have been regularly paying the rent but the complainant is refusing to receive the same. Since the learned Magistrate has not applied his judicial mind while passing the order of taking cognizance, the same should be quashed. 4. Mr. Pattnaik, learned counsel for the petitioners, in support of his submissions, has relied on the decision in the case of Sri Kumar Debasish v. State of Orissa and another*; (2008) 40 OCR 30 and Akapati Bhaskar Rao v. Trinath Sahu and another; 2002 (I) OLR 502 . 5. Mr. Biswal, learned Counsel for the opposite party submitted that since 2001, the petitioners are not paying the rent to the opposite party for which a notice under Section 105 of the T.P. Act was issued to them to deliver the vacant possession of the shop room because the opposite party was in need of the same. According to him, in the instant case, the complainant has well proved prima facie case against the present petitioners and the learned Magistrate has rightly taken cognizance of the offence under Section 447 of the IPC. According to him, in the instant case, the complainant has well proved prima facie case against the present petitioners and the learned Magistrate has rightly taken cognizance of the offence under Section 447 of the IPC. In support of his submissions, he relied on the decision in the case of Abdul Samad v. Md. Qamruddin and another; 2007 (Supp.-II) OLR 164 and also the decision in the case of Akapati Bhaskar Rao (Supra). DISCUSSION 6. The impugned order passed by the learned Magistrate shows that after receiving the complaint, he examined the complainant, recorded the statement of the complainant under Section 200 of the Code and after finding out a prima facie case, took cognizance under Section 447 of the IPC. The said order dated 18.2.2006 is as follows : “18.2.2006. The case record is put up today for accordance of necessary order with respect to cognizance. Perused the complaint petition, initial statement of the complainant recorded u/s. 200 Cr.P.C. and the documents available on record. The materials on record reveal a prima facie case for commission of an offence punishable u/s. 447 of IPC. Hence, cognizance of the offence u/s. 447 of IPC is taken against the accused named in the complaint. Hence, issue summons to the accused fixing 4.4.2006 for appearance. The learned Counsel for the complainant is to file the requisite within a week from today for issuance of summons in both the ways. Sd/- S.D.J.M., BBSR.” 7. Before going further, it would be just and proper to refer to the provisions contained in Section 441 of the IPC, as amended by the Orissa Act 22 of 1986, which is quoted herein below : “441.Whoever enters into or upon property in possession of another with intent to commit an offence or to in 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 lawfully entered into or upon such property, remains there with the intention of taking unauthorised possession or making unauthorised use of such property and 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 on him, Is said to commit criminal trespass.” 8. In violation of the provisions of Section 441 of the IPC brings a culprit punishable under Section 447 of the IPC. After exhaustive discussion of this provision, a Division Bench of this Court in Akapati Bhaskar Rao (Supra), at paragraph-12, has observed in the following manner: “12. On the basis of the discussions made in the preceding paragraphs, we are of the opinion that the rigor of section 441, IPC as amended by the Orissa Act 22 of 1986 shall not be applicable to the following cases : (i) Statutory tenants whose tenancy is governed by any statute (They are protected by tenancy laws like, Public Premises Eviction Act, etc.) (ii) Tenant who has entered into possession by virtue of a lease. (Rights of such tenant is governed under the provisions of the Transfer of Property Act and the Specific Relief Act and he acquires a right of possession. After determination of tenancy by notice, he would become “Tenant holding over”, “Tenant on sufferance” or “Tenant at will” as the case may be. His possession being juridical, is protected. He can be evicted only in due process of law. The possession of such tenant cannot be equated with that of trespassers.) (iii) Person who has entered into possession by virtue of some covenant like, agreement to sell, will etc. and/or put forth a genuine right over the property possessed. (If a person claims a right of title coupled with possession, till the dispute is adjudicated, his possession cannot be conclusively said to be that of a trespasser and his right to possess would be subject to the result of the suit or legal proceeding.) However, the said section shall be applicable to the following category of persons; (i) Person who was permitted to possess a property for a particular period and after lapse of the said period, he was called upon to handover possession by issuance of quit notice, (ii)Person who was put in possession by means of a ‘licence’ and who fails to handover possession after expiry of the term of licence and/or after receiving quit notice from the landlord, (iii) Persons who was in “permissive possession” and who fails to handover possession even after receiving a notice to quit. The reference made by the learned Single Judge is answered accordingly. The reference made by the learned Single Judge is answered accordingly. Before parting, we feel constrained to observe that there cannot be an iron tight jacket to fit in all cases or tenants. It should be borne in mind that judicial process should not be permitted to be used as an instrument of oppression or needless harassment. The court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of private complainant as vendetta to harass the persons needlessly. In a given case, the Court adjudicating the dispute has to take a pragmatic view keeping in mind the discussions made in this judgment and other provisions of law and arrive at a subjective satisfaction as to whether mischief as stipulated under section 441, I.P.C. (Amended) has been intentionally committed or not and pass necessary orders.” 9. The aforesaid decision has been passed by this Court after analyzing several decisions of the Hon’ble Supreme Court and this Court. With due regard to the aforesaid decision, it is clear that if a person who is permitted to possess a property from a particular period and thereafter he does not vacate the same, he becomes a trespasser and liable to be evicted. In the instant case, even if the civil suit is pending, the culpability of the petitioner by overstaying in the shop room in question cannot be said to be without any intention to occupy the same. In course of argument, a point was raised whether the petitioners have offered the rent to the opposite party or deposit the rent in favour of the original owner and to that effect, an affidavit has been filed by the learned Counsel for the petitioners showing that the petitioners have prepared the bank draft for the month of May, 2000 to August, 2008. Such copies of the bank draft are placed before me. From these documents, it is clear that from 2008 onwards, they have not paid any rent. When notice under Section 106 of T.P. Act has been issued and admittedly they have not paid the rent from 2008 onwards, there is prima facie material to show that the petitioners are to be tried as the Court does not find any illegality with the impugned order of the learned Magistrate, while taking cognizance. When notice under Section 106 of T.P. Act has been issued and admittedly they have not paid the rent from 2008 onwards, there is prima facie material to show that the petitioners are to be tried as the Court does not find any illegality with the impugned order of the learned Magistrate, while taking cognizance. Thus, the learned Magistrate, having found a prima facie case against the present petitioners after application of his judicial mind, took cognizance of the offence under Section 447 of IPC against them due to violation of “Section 441 of IPC. Hence, the impugned order dated 18.2.2006 passed by the learned Magistrate in I.C.C. No.475 of 2006 cannot be said illegal and improper. Therefore, the petitioners are directed to face trial of the case and it is made clear that if any other contention or the contention already raised before this Court is necessary to be raised before the Trial Court, they may raise the same at the time of framing of charge. The trial Court is further directed to complete the trial of the case within a period of four months from the date of receipt of this judgment. 10. With the aforesaid observation/direction, the CRLMC is disposed of. A copy of this judgment along with LCR be immediately sent back to the concerned Court by Special Messenger. CRLMC disposed of.