ORDER : This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, by the petitioners, who are accused Nos.1 to 3 in C.C.No.543/2022 on the files of the Judicial First Class Magistrate Court-II, Kochi, and the prayer herein is as under: To quash Annexure-I, C.C.No.543/2022 before the Judicial First Class Magistrate-II, Kochi (Initially numbered as C.M.P.No.3031/2021) and Annexure-VIII order. 2. Heard the learned counsel for the petitioners and the learned counsel appearing for the 2nd respondent/de facto complainant. Also heard the learned Public Prosecutor. 3. The prosecution come forth when Annexure 1 complaint was lodged by the 2nd respondent before the Judicial First Class Magistrate - II, Kochi. The allegation in the complaint is that, the accused herein criminally trespassed upon the house belonged to the complainant, which was obtained on the strength of a gift deed on 11.10.2021, after breaking of its door in the absence of the complainant, who is the 2nd respondent and her husband. The learned Magistrate proceeded with Annexure 1 complaint and recorded the sworn statements of the complainant and witnesses. Ultimately, as per Annexure-VIII order dated 26.5.2022, took cognizance for the offences punishable under Sections 447, 448, 453 and 454 r/w Section 34 of the Indian Penal Code (for short, ‘the IPC’ hereinafter) and numbered the case as C.C.No.543/2022. Now, the petitioners seek quashment of the above proceedings. 4. According to the learned counsel for the petitioners, the allegations in the complaint are purely civil in nature and the same is the subject matter of civil suit viz., O.S.No.420/2015 filed by the siblings of the 2nd respondent herein viz., Leela Jockey, T.J.Casper and Jossy T.J. It is pointed out by the learned counsel that the 2nd respondent herein has no right, title or interest over the property in question and she is not entitled to file a criminal complaint against the petitioners on the basis of a fraudulent document, which is already under challenge at the instance of the executant of the same. Thus, the entire contentions are devoid of merits. He further argued that the 2nd respondent filed a suit earlier which resulted in Annexure-VI judgment, whereby it was found that the 2nd respondent has neither title nor possession over the property in question. Under such circumstances, no trespass in the eye of law. Thus, the entire contentions are devoid of merits. He further argued that the 2nd respondent filed a suit earlier which resulted in Annexure-VI judgment, whereby it was found that the 2nd respondent has neither title nor possession over the property in question. Under such circumstances, no trespass in the eye of law. The learned counsel further argued that the entire allegations in terms of Annexure 1, are totally false and no such incident occurred and that the ingredients to constitute the offences alleged are not made out. It is further contended by the learned counsel that the trial court took cognizance of Annexure 1 by not forwarding the same to the concerned police station for registering a crime. Instead, the Magistrate Court has passed Annexure-VIII order by taking Annexure 1 complaint on file and numbering the same as C.C.543/2022. The learned counsel further pointed out that Annexure-VIII order is not a speaking order. The entire procedure adopted by the Magistrate Court is illegal and beyond the powers conferred. Under such circumstances, the learned Magistrate went wrong in issuing summons to the accused in terms of Annexure-VIII order by not adhering to the procedure established by law. Therefore, the further proceedings are liable to be quashed, is the submission made by the learned counsel for the petitioners. 5. While defending the proceedings sought to be quashed, the learned counsel for the de facto complainant filed Crl.M.A.No.3/2024 to receive copy of gift deed executed by Leela Jockey in favour of the 2nd respondent as Annexure R2(a), copy of the Encumbrance Certificate as Annexure R2(b), copy of Building Permit as Annexure R2(c), copy of Occupancy Certificate as Annexure R2 (d), copy of invoice issued by KSEB as Annexure R2(e), copy of Ownership Certificate as Annexure R2(f), copy of Building Certificate as Annexure R2(g) and copy of Property Tax receipt in her name to show her possession over the property as Annexure R2(h). That apart, copy of judgment in C.C.No.434/2016 on the files of the Judicial First Class Magistrate Court-II, Kochi, as Annexure R2(i) also placed. In addition to that, the 2nd respondent filed Crl.M.A.No.1/2025 to receive copy of judgment in O.S.No.420/2015 delivered on 22.1.2025 as Annexure R2(j). That apart, copy of judgment in C.C.No.434/2016 on the files of the Judicial First Class Magistrate Court-II, Kochi, as Annexure R2(i) also placed. In addition to that, the 2nd respondent filed Crl.M.A.No.1/2025 to receive copy of judgment in O.S.No.420/2015 delivered on 22.1.2025 as Annexure R2(j). According to the learned counsel for the 2nd respondent, as per Annexure R2(j) judgment, the suit filed by Leela Jockey, T.J.Casper and Jossy T.J., was dismissed by the learned Munsiff holding that the gift deed in favour of the 2nd respondent herein as a valid document whereby, she obtained title and possession over the same. It is pointed out further that in this matter, the allegation in the complaint is that the accused herein criminally trespassed upon the house owned and possessed by the complainant on the strength of a gift deed on 11.10.2021, after breaking of its door in the absence of the 2nd respondent and her husband. According to the learned counsel for the 2nd respondent, the allegation as to commission of the above offences is well made out, prima facie, since the accused have no manner of right over the property or the house situated therein. He also submitted that the case of the complainant is fortified by Annexure R2(j) verdict of the civil court and therefore, the proceedings of the trial court shall go on. 6. The learned Public Prosecutor supported the argument of the de facto complainant, even though the case stems from a private complaint lodged by the 2nd respondent before the trial court. 7. In this matter, as averred in the complaint and as found by the learned Munsiff in Annexure R2(j) judgment, the gift deed relied on by the 2nd respondent who obtained title and possession over the property, is found to be a valid document. 8. Here, the trial court took cognizance for the offence punishable under Sections 447 of the IPC which provides punishment for “criminal trespass” and “criminal trespass” is defined under Section 441 of the IPC. Similarly, the trial court took cognizance for the offence under Section 448 of the IPC which provides punishment for “house-trespass” and “house-trespass” is defined under Section 442 of the IPC. Similarly, the trial court took cognizance for the offence under Section 448 of the IPC which provides punishment for “house-trespass” and “house-trespass” is defined under Section 442 of the IPC. Apart from that, the trial court took cognizance for the offence under Section 453 of the IPC, punishment for lurking house-trespass and Section 454 of the IPC, lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment. “Lurking house- trespass” is defined under Section 443 of the IPC. Therefore, Sections 441, 442 and 443 of the IPC are extracted hereunder: 441. Criminal trespass.—Whoever enters into or upon property in the 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, is said to commit “criminal trespass”. 442. House-trespass.—Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit “house-trespass”. Explanation.—The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass. 443. Lurking house-trespass.— Whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit “lurking house-trespass”. 9. Reading Sections 441, 442 and 443 of the IPC, criminal trespass is defined in Section 441 as entering 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. So, the aim or dominant intention of the accused for committing an offence or intimidation, insult or annoyance must be proved. Committing criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit “house-trespass”. Committing criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit “house-trespass”. Similarly, “lurking house-trespass” means committing house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject matter of the trespass. Reading the definition of Sections 441 to 443 of the IPC, entering into or upon the property in possession of another is the primary ingredient to find criminal trespass, house trespass and lurking house-trespass. 10. In the instant case, according to the 2nd respondent, she is the owner in possession of the house, where the accused alleged to have criminally trespassed, on the strength of Annexure R2(a) gift deed. As per Annexure R2(j) judgment, competent civil court found the same as a genuine document. It is not in dispute that Annexure R2(j) judgment can be subject matter of challenge by appeal. However, the question arises for consideration is, what is meant by ‘entering into or upon property in the possession of another’ as stated in Section 441 of the IPC?. When a person possesses a property in exclusion of other person’s right legally and relying on a title deed unless and until the title deed is declared as set aside or declared as void by a competent civil court, the possession based on the said title deed is sufficient to meet possession dealt under Section 441 of the IPC and for the purpose of Sections 442 and 443 of the IPC. 11. In the instant case, the 2nd respondent has a definite case that she is having title and possession of the property on the strength of Annexure R2(a) gift deed, which was locked by her. The further case of the 2nd respondent is that, the accused herein, who are having no right upon the property and the building, trespassed upon the same, after breaking open its key. Thus, the allegation in the complaint, prima facie, makes the basis of the offences alleged. 12. The further case of the 2nd respondent is that, the accused herein, who are having no right upon the property and the building, trespassed upon the same, after breaking open its key. Thus, the allegation in the complaint, prima facie, makes the basis of the offences alleged. 12. In this matter, even though the contention raised by the petitioners asserting the point that Annexure 1 complaint did not prima facie constitute the offences as alleged and the said contention could not succeed, it is noticed that Annexure-VIII order passed by the learned Magistrate is a cryptic order without reasons. 13. In the decision in Chandran C.R v. State of Kerala reported in (2024 KHC OnLine 514), in paragraph Nos.6, this Court held the legal position as under: 6. It is specifically pointed out by the learned Counsel for the petitioner further that the de-facto complainant herein is none other than the former Secretary of Palamel Service Cooperative Society Ltd No.4013, and she was suspended from service with effect from 24/01/2016, on the allegation that she swindled away Rs.17,51,131/-from the Society. The petitioner herein is the President of the Society, and it is at his juncture, misappropriation was detected. As a sequel thereof, apart from suspending the de-facto complainant from service, crime was registered against her. Thereafter, she was prosecuted as per the proceedings in CC No.524/2018 and convicted and sentenced for the offence punishable under S.409 of IPC. The judgment in CC No.524/2018 dated 13/05/2024 has been placed for the perusal of this Court. Annexure A14 produced before this Court is the copy of FIR which led to conviction in CC No.524/2018. 14. In M/s.Pepsi Foods Ltd and Another v. Special Judicial Magistrate and Others (1998 KHC 1055), in paragraph No.28, the Apex Court held as under: Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. 15. Again, in GHCL Employees Stock Option Trust (M/s) v. M/s.India Infoline Ltd and Others (2013 KHC 4229) in paragraph No.14, it was held as under: Summoning of accused in a criminal a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record. 16. In Chandran C.R’s case (supra), in paragraph No.10, this Court held that the order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory material evidence on record. Criminal law cannot be set into motion as a matter of course. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory material evidence on record. Criminal law cannot be set into motion as a matter of course. The Court has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. In the said decision, in paragraph No.11, this Court held as under: 11. Therefore, an order taking cognizance should be self speaking and the same should contain the materials relied on by referring the same in detail and based on the said materials the offences for which cognizance proposed to be taken are made out, so as to justify the order taking cognizance. The order of cognizance without disclosing the essentials described herein above, in the form of a cryptic, irrational and non speaking, would not sustain in the eye of law. Therefore, the cryptic order taking cognizance challenged in this petition would require interference and accordingly order dated 23/07/2016 passed by the Magistrate is liable to be set aside However, the matter would require reconsideration by the Magistrate after considering the materials, including the statements given by CWs 1 to 3, afresh in view of the settled law herein above discussed. For the said purpose, the matter is liable to be remanded back to the trial court. 17. Since Annexure-VIII order is a cryptic and non-speaking order, the same is set aside and the learned Magistrate is directed to pass fresh orders on the basis of the allegations in the complaint and sworn statements recorded as that of the complainant and witnesses, afresh, as per law and proceed further. 18. 17. Since Annexure-VIII order is a cryptic and non-speaking order, the same is set aside and the learned Magistrate is directed to pass fresh orders on the basis of the allegations in the complaint and sworn statements recorded as that of the complainant and witnesses, afresh, as per law and proceed further. 18. As regards to the procedural irregularity pointed out by the learned counsel for the petitioners, there is no procedural irregularity in the matter of not forwarding the complaint to the police. Accordingly, this Crl.M.C. stands allowed in part as indicated above. For the said purpose, the complainant is directed to appear before the Magistrate Court on 3.3.2025. Registry is directed to inform this matter to the jurisdictional court, for information and further steps.