KISHORE JAIN Vs. STATE

JUDGEMENT

(1.) This petition u/s. 482 of Code of Criminal Procedure 1973 (for short 'Criminal Procedure Code.') is directed against the order dated 26/11/1993 passed by the court of Metropolitan Magistrate, framing charge against the petitioner under Section 448 Indian Penal Code, in the case FIR No. 13/91 P.S. Anand Parbat, Delhi. The question which arises for consideration is : whether the corporation was or not in possession of the premises, after the same were duly sealed under Section 345-A of Delhi Municipal Corporation Act (here-in-after DMC Act), for unauthorised construction?

(2.) The facts in brief are : On 11th December, 1990 the Deputy Commissioner, Municipal Corporation of Delhi, after considering reports regarding unauthorised construction, at premises No. 25/8-A, Gali No.7, Anand Parbat, Karol Bagh, Delhi (hereinafter referred to as "the premises"), in exercise of the powers vested in him u/Ss. 345-A and 491 of DMC Act, and the Rules made thereunder, directed the Zonal Engineer to forthwith seal the premises where the said unauthorised construction/erection or work was being carried out. It was further ordered that the said premises shall remain sealed with the seal of MCD and shall remain in the personal custody of the Zonal Engineer and that no person shall remove the seal except under the orders of the authorities provided by sub-section (3) of Section 345-A of the Act. In pursuance of this order. Zonal Engineer-Building, Karol Bagh sealed the entire building at ten different points, on 7/12/1990 SHO, P.S. Anand Parbat was informed about the same, and specimen seal affixed at the said premises alongwith, copy of the sealing order was also sent to him. He was requested to keep a strict watch over the seals so that the same are not disturbed or removed. On 7/1/1991 Junior Engineer(Building) during inspection of the area found that seals of the above said premises were broken without any order and that the owner/builder had started further unauthorised construction. Consequently on 8/1/1991, the Zonal Engineer(Building), lodged a report with the SHO. FIR for criminal trespass was registered. After completion of investigation challan was filled and cognizance was taken. Learned trial court by the impugned order found that prima facie case of criminal trespass was made out against the petitioner and charge under section 448 Indian Penal Code was framed against him. The same is under challenge. I have heard learned counsel for the petitioner and learned APP for the State and have been taken through the record.

(3.) Learned counsel for the petitioner argued that the offence of criminal trespass as defined in Section 441 Indian Penal Code, can only be committed against a person who is in actual physical possession of the premises; it pre-supposes, positive and de-facto possession of the complainant. In this case the possession of the premises remained with the petitioner, being owner of the premises and merely because the premises were sealed by the Corporation u/s. 345-A of the DMC Act, for some alleged unauthorised construction, it cannot be said that petitioner was dispossessed. Therefore, framing the charge of criminal trespass is liable to be quashed. Reliance was placed on the decisions: (1) Janggu @ Shobhit and Others Vs. State of M.P. 5000(1) Crimes 7; (2) Golak Baliarsingh Vs. Purna Chandra Baliarsindh and Ors. 1977 Crl. L.J.(NOC) 77 (Orissa); (3) G. Gurdial Singh & Ors. Vs. Abbey Pass AIR 1967 Punj 244; (4) Basanta Kumar Son Vs. The State AIR 1956 Cal 118; (5) Lalchand Pitumal Vs. Emperor AIR 1933 Sind 396; (6) Bismillah & Ors. Vs. Emperor 1929 Cr.L.J. 745.