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PETITIONER: SMT. KANWAL SOOD

       Vs.

RESPONDENT: NAWAL KISHORE AND ANOTHER

DATE OF JUDGMENT26/11/1982

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) DESAI, D.A.

CITATION:  1983 AIR  159            1983 SCR  (1) 871  1983 SCC  (3)  25        1982 SCALE  (2)1066

ACT:      Criminal tresspass-Donor reserving life interest in the house gifted  to the donee-Permitting another to reside with him-Status of  that person  after the  death  of  the  donor whether his  occupation would  amount to  Criminal trespass- Penal Code Section 441 as amended by U.P. Act 31 of 1961.

HEADNOTE:      Premises, "Aranaya  Kutir" bearing  Municipal  No.  47A Jakhan in  Dehradun was  owned by  one Shri  R.C.  Sood.  He executed a  gift deed  in favour of Shree Anand Mayee Sangh, Dehradun, with  a stipulation that the donor shall remain in possession of  the premises  during his  life-time and after his death his widow if alive would remain in possession. The management of  the same would be taken up by the Sangh after their death.      In 1967,  the appellant,  the widow  of the  brother of Shri R.C.  Sood was  invited by Shri Sood to reside with him in the  aforesaid house and ever since she has been residing peacefully there.  On 10th  of October,  1973 Shri R.C. Sood expired. Respondent  No. 1,  Shri Nawal Kishore as secretary of the  Anand  Mayee  Saogh,  served  a  notice  dated  13th November, 1973  on the  appellant asking  her to  vacate the premises  immediately,  and  threatening  to  take  criminal action against  her on failure to do so, as her further stay in the  premises would  be deemed  to be  in the nature of a criminal trespass.  When the  appellant did  not vacate  the premises, respondent  No. 1  filed a complaint under section 468  of  the  Penal  Code.  The  Sub-Divisional  Magistrate, Mussorie found  that the  continued stay  of  the  appellant amounted to  criminal trespass within the meaning of section 441 of  the Penal  Code, convicted her under section 448 and sentenced her to pay a fine of Rs. 100 or in lieu thereof to undergo simple  imprisonment for  40 days.  In addition, the learned  Magistrate  also  passed  an  order  directing  the appellant to  vacate the  premises within  two months of the order, purporting  to  be  one  under  section  456  o;  the Criminal Procedure Code.      The appeal  preferred by  the appellant was allowed and the  conviction   and  sentence   passed  were   set  aside. Respondent No.  1, therefore assailed the order of acquittal by filing  a criminal appeal before the High Court. The High

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Court allowed  it and reversed the order of acquittal passed by the  Sessions Judge  and convicted  the appellant. In the opinion of the High Court, the appeal filed by the appellant before the  Sessions Judge  was incompetent,  as  no  appeal would lie  against the  imposition of  fine. The  High Court declined to  treat the  appeal as  a division  in as much as under the provisions of section 401(5) of the Criminal 872 Procedure Code,  it is permissible to treat a revision as an appeal but  not vice  versa. Hence  the  appeal  by  special leave.      Allowing the appeal, the Court ^      HELD: 1.1.  In  order  to  satisfy  the  conditions  of section 441  of the  Penal Code, it must be established that the party,  complained of  entered in  possession  over  the premises with  intent to  commit an  offence. Every trespass does not  amount to  criminal trespass within the meaning of that section. [875 G]      1:2.   Initiating    criminal   proceedings    in   the circumstances of  this instant  case is only an abuse of the process of  the court.  This is  essentially a  civil matter which could  be properly  adjudicated upon  by  a  competent civil court.  (a) The  appellant was  allowed to  occupy tho premises in  1967 by Mr. Sood perhaps on ’lease and license’ basis.  (b)  A  bare  perusal  of  the  complaint  filed  by Respondent No.  1 makes  it abundantly  clear that  there is absolutely  no   allegation  about   the  intention  of  the appellant to commit any offence, or to intimidate, insult or annoy any  person in  possession; and  (c)  If  a  suit  for eviction is filed in the civil court, the appellant, who may be fondly  thinking that  she had  a  right  to  occupy  the premises even  after the  death of  Shri Sood, might be in a position to  vindicate her right and justify her possession. [875 E-H, 876 A, E-F]      2.  The  appeal  filed  by  the  appellant  before  the Sessions  Judge  was  competent  and  maintainable.  If  the learned Magistrate  had only  awarded a sentence of fine, in that case  revision alone  would be  competent  and  not  an appeal. But  in the  instant case,  the Magistrate  not only awarded the  fine of Rs. 100 but also directed the appellant to vacate  the premises  within two  months from the date of the order.  This part  of the  order presumably  was  passed under section  456 of Criminal Procedure Code, and this made the order appealable.                                                    [876 F-H]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 69 of 1981      Appeal by  special leave  from the  Judgment and  order dated the 16th December, 1980 of the Allahabad High Court in Criminal Appeal No. 342 of 1976.      Soli J.  Sorabjee, R.K Jain, R.P. Singh and Natin Mohan Popli for the Appellant.      P.R. Mridul,  Praveen Kumar,  A.K. Sharma  and  Dalveer Bhandari for the Respondent.      The Judgment of the Court was delivered by      MISRA  J.  The  present  appeal  by  special  leave  is directed  against   the  judgment   of  the  High  Court  of Judicature at Allahabad, 873 dated 16th  December, 1980,  convicting the  appellant under

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section 448 of the Indian Penal Code.      Premises Aranya  Kutir bearing Municipal No. 47A Jakhan in Dehra Dun was owned by one R.C. Sood. He executed a gift- deed in favour of Shri Anand Mayee Sangh, Dehra Dun with the stipulation that the donor shall remain in possession of the premises during  his life time and after his death his widow if alive  would remain  in possession. The management of the same would be taken up by the Sangh after their death.      The appellant  is the  widow of the brother of Shri R.C Sood. It  appears that  in 1967 the appellant was invited by Shri R.C. Sood to reside with him in the aforesaid house and ever since  she has  been residing peacefully there. On 10th of October,  1973, Shri  R.C. Sood  expired. The  appellant, however, continued to live in the said house.      Respondent No.  1, Shri  Nawal Kishore  as Secretary of the aforesaid  Sangh served  a notice  dated 13th  November, 1973 on  the appellant  asking her to vacate the premises in dispute immediately,  failing which  a criminal action under section 448  of the Indian Penal Code would be taken against her as  her further  stay in the premises would be deemed to be in  the nature  of a  criminal trespass.  The  appellant, however, did  not vacate  the premises  as she was convinced that her  stay in  the said  premises could  not  amount  to criminal trespass.      Respondent No.  1, Shri Nawal Kishore thereupon filed a complaint under section 448 of the Indian Penal Code against the appellant  in the  Court of  Sub-Divisional  Magistrate, Mussoorie. He  examined himself  as P.W. 1 and also produced Shri K. Bose as P.W.2.      The appellant  in her  statement under  section 313, as well as  in her  statement as  a witness D.W. 1 admitted the services of  notice on  her but  denied  that  any  criminal action was  called for.  She further stated that she had met Anand Mayee who had permitted her to live in the house.      The learned  Magistrate, however,  took the  view t hat the premises  in dispute  has been vested in the Anand Mayee Sangh by 874 virtue of  the gift-deed  and a notice to vacate having been served  upon  the  appellant,  the  continued  stay  of  the appellant in  the  said  premises  amounted  to  a  criminal trespass within  the meaning  of section  441 of  the Indian Penal Code.  He accordingly  convicted the  appellant  under section 448  to the  Indian Penal  Code and sentenced her to pay 1  fine of  Rs. 100  and in  default to  undergo  simple imprisonment  for   40  days.   In  addition,   the  learned Magistrate also  passed an  order directing the appellant to vacate the  premises within two months of the passing of the order, purporting  to  be  one  under  section  456  of  the Criminal Procedure Code.      The appellant  feeling aggrieved  by the  order of  the learned Magistrate  went up  in appeal  and took  up various grounds. The  learned Sessions Judge allowed the appeal, set aside the  order of the learned Magistrate and acquitted the appellant  by   his  judgment   Dated  19th   August,  1975. Respondent No.  1 Shri  Nawal Kishore  assailed the order of acquittal by  filing criminal  appeal in  the High Court and the High  Court in  its turn allowed the appeal and reversed the order  of acquittal passed by the learned Sessions Judge and convicted  the appellant.  In the  opinion of  the  High Court the  appeal filed by the appellant before the Sessions Judge was  incompetent as  no appeal  could lie  against the imposition  of  fine.  It  also  took  the  view  under  the provisions of  section 401(5) of the Criminal Procedure Code it is  permissible to  treat a revision as an appeal but not

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vice versa.  It therefore,  declined  to  treat  the  appeal against the  order of  Magistrate as  a revision.  The  High Court further  expressed the  opinion that the appellant may file a  revision if she so chooses which would be considered by the Court of Admission and then It proper the same may be allowed. The  appellant feeling aggrieved by the judgment of the High Court bas filed the present appeal with the special leave as stated earlier.      Shri Soli  J. Sorabji  appearing for  the appellant has contended that  on the  allegations made in the complaint no offence under  section 411  of the Indian Penal Code is made out. In  order to  appreciate  the  contention  it  will  he appropriate at  this stage to read section 441 of the Indian Penal Code:           "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 875      there with  intent thereby to intimate, insult or annoy      any such  person, or  with intent to commit an offence.      is said to commit "criminal trespass". There has  been local  amendment by  U.P. Act 31 of 1961 for section 441  of the  Indian Penal Code, 1 960, the following shall be substituted:           "441. Criminal  Trespass:- Whoever  enters into or      upon property  in possession  of another with intent to      commit an  offence or  to intimidiate,  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  intimidiate,      insult or  annoy any  such person,  or with  intent  to      commit an offences, or having entered into or upon such      property, whether before or after the coming into force      of the Criminal Law (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’.      It may be pointed out that the appellant was allowed to occupy the  premises in  1967 by  Shri R.C.  Sood. Under the terms of  gift-deed Shri  Sood was  entitled  to  remain  in occupation of the premises during his life time. He could as well grant,  leave and  licence to p the appellant to occupy the premises  along with  him. Now the question arises about her status  after the  death of Shri R.C. Sood. At the most, it can  be said  that after the death of Shri Sood the leave and license  granted by  Shri Sood came to an end and if she stayed in  the premises  after the  death of  Shri Sood, her possession may  be that  of a  trespasser but every trespass does not  amount to  criminal trespass within the meaning of section 141  of the  Indian Penal  Code. In order to satisfy the conditions  of section  441 it  must be established that the appellant  entered in  possession over the premises with intent to commit an offence. A bare persual of the complaint filed by  Respondent No.  I makes  it abundantly  clear that there is absolutely no allegation about the intention of the appellant to  commit any offence or to intimidate, insult or annoy 876 any person  in possession,  as will  be evident  from  three

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material paragraphs which are quoted below:      "2.   That the  late Shri  R.C. Sood  was occupying the           said premises in accordance with clause No. I of a           gift-deed executed  by him in favour of Shri Anand           Mayee Sangh and after his demise the said premises           had to be delivered to Shri Anand Mayee Sangh.      3.    That  after the  demise of  Shri R.".  Sood,  the           accused was  repeatedly requested  to  voluntarily           vacate and  deliver the  possession  of  the  said           premises to the Sangh but the accused paid no heed           and hence a notice dated 13.11.1973, copy of which           enclosed, was  sent to  the accused as required by           U.P. Amendment  of Section  448  I.P.C.  the  said           notice was  served upon accused on 14.11.73 as per           postal A.D. receipt attached herewith.      4.    That  the accused was required to quit and vacate           the said  premises by  the 20th  day of  November,           1973 but  instead of  vacating  the  premises  the           accused has  been making  unusual pretext  and has           thus  committed   an  offence  under  section  448           I.P.C."      The appellant  may be  fondly thinking  that she  had a right to  occupy the  premises even  after the death of Shri R.C. Sood.  If a  suit for  eviction is filed in Civil Court she might  be in  a position  to  vindicate  her  right  and justify her  possession. This  is essentially a civil matter which could  be properly  adjudicated upon  by  a  competent Civil  Court.   To  initiate  criminal  proceedings  in  the circumstances appears  to be only an abuse of the process of the Court.      We also  do not  agree with the view taken by the Court that the  appeal filed  by the appellant before the Sessions Judge was  incompetent. If  the learned  Magistrate had only awarded a  sentence of  fine, in  that case  revision  alone would be competent and not an appeal but in the instant case the Magistrate not only awarded the fine of Rs. 100 but also directed the  appellant to  vacate the  premises within  two months from  the date  of the  order. This part of the order presumably was  passed under  section 456  of  the  Criminal Procedure Code,  and this  made the order appealable and the High Court  has gone  wrong in  holding that appeal filed by the  appellant   before   the   Sessions   Judge   was   not maintainable. 877      There were  certain other pleas taken by the respondent before the  High Court  but it  is not necessary to refer to those pleas  in the  view that  we have  taken that  on  the complaint itself  no offence under section 448 of the Indian Penal Code is made out.      For the  foregoing discussion, the appeal must succeed. It is  accordingly allowed.  The judgment  of the High Court dated 16th December, 1980 is set aside and that of the Court of Sessions  is restored.  The bail  bond if  any  shall  be cancelled. S.R.                                         Appeal allowed. 878