KABOOL CHAND Vs. PHOOL

JUDGEMENT

(1.) This appeal has been preferred by complainant Kabool Chand against the acquittal of the respondent Phool Chand for an offence under Section 448 I. P. C. The learned Sessions Judge had acquitted the respondent, who was convicted by Special Judicial Magistrate, Dehradun under Section 448 I. P. C. and sentenced to R. I. for three months and a fine of Rs. 500/- The facts which gave rise to this case were that the appellant and his brother Munnalal were owners of plot No. 76 area 0. 12 acres situate in village Mandu Wala in District Dehradun. The appellant and his brother had constructed a room in an area of 001. acre of that plot with road side for carrying business. The respondent who is related to them was allowed to carry on a shop in that room for a period of two or three months during which he was supposed to make his own arrangement in some other place. The condition of giving the room was that they would get it vacated at their own will, when the respondent did not vacate the room inspite of his having purchased another land near the shop in question, he was given notice dated 2-11-1974 for vacating it by 15-11-1974. That notice was received by the respondent on 7-11-1974. The respondent had become its trespasser and liable to conviction under Section 448 I. P. C. After the complaint was filed and the statements under Section 200 Cr. P. C. or 202 Cr. P. C. were recorded the respondent was summoned. The respondent claimed that the room in question was built by him. He was not a trespasser, therefore, question of his conviction under Section 448 I. P. C. did not arise. The prosecution in support of its case examined Ram Prasad P. W. 1 Kabool Chand P. W. 2 as witnesses, who deposed about the ownership of the room in question and giving it on licence to the respondent. Chand Mohan P. W. 4 supports the prosecution case regarding the giving of the room in question as licensee to the respondent. P. W. 3 Mohar Singh and P. W. 5 Narain Dutt claimed that they had constructed the room in question on behalf of the complainant. P. W. 6 V. D. Srivastava is a formal witness. The respondent also examined Ram Chandra D. W. 1 and Nathu Lal D. W. 2. Both these witnesses claim that Phool Chand respondent got this room constructed. The learned Special Judicial Magistrate believed the prosecution evidence. He came to the conclusion that the room in question was constructed by the appellant and after the notice to withdraw was given the respondent had become the trespasser. He accordingly convicted him under Section 448 I. P. C. The learned Sessions Judge, however, felt that the essential ingredients of an offence of the trespass is that the entry itself should be unlawful. The notice, in his opinion, had the effect of converting a civil trespass into a criminal trespass. The provision cannot be interpreted to apply to cases of authorized entries because in that case every tenant who does not vacate after notice to quit would become a criminal trespasser. He, therefore, allowed the appeal and set aside the conviction. I have heard the learned counsel for the appellant. No counsel has appeared for the respondent. Section 441 of the Indian Penal Code in its application to U. P. as substituted by Criminal Laws (U. P. Amendment) Act, 1961 (U. P. Act No. XXXI of 1961) runs as follows: " 441 Criminal Trespass. 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 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 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 unauthorized possession of making unauthorized 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. " I do not think that the observation of the learned Sessions Judge was justified that the essential ingredient of the offence of trespass is that the entry itself should be unlawful. Under the second paragraph of Section 441 quoted above, it is not necessary that the entry itself should be unlawful. In a case where the entry is lawful it could become unlawful it the person in possession 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, by the date specified in the notice. Even if the entry is lawful, it can become unlawful after the notice is servedand he fails to vacate the property on which the trespass is committed. In the instant case the entry no doubt was lawful and was permissive but the respondent failed to withdraw from it after the notice dated 2-11-1974 was served on him on 7-11-1974 and he failed to withdraw from the property by the date given in the notice. However, one has still to examine the question whether the construction in question was built by the appellant or the respondent. Even if the land was owned by the appellant but the room in question was constructed by the respondent, the question of criminal trespass would not arise under Section 441 I. P. C. Kabool Chand P. W. 2 has asserted that the room in question was constructed by him and was given to the respondent for running a shop for a couple of months. He is supported in his statement by Ram Prasad, who has asserted that he saw Kabool Chand China and Mohar Singh constructing the room in question, P. W. 3 Mohar Singh asserts that he was called by the appellant for constructing the room in question. He had worked as a mason in constructing the room. P. W. 5 Narain Dutt asserts that he was a labourer, who had assisted in the construction of the room in question. P. W. 4 Chand Mohan and P. W. 5 Narain Dutta also said that the room in question was given temporarily to the respondent by the appellant. I have gone through the statements of these witnesses and I do not see any reason for not placing reliance on their testimony. D. W. 1 Ram Chandra on behalf of the defence claims that he is the Pradhan Sahayak of village Nauga-van. Mandu Wala is also within Naugavan circle. There is a post-office in Mandu Wala which is run by the respondent. This post-office was constructed 6 or 7 years back. It was within his knowledge that it was constructed by Phool Chand. Phool Chand was present there and Nathulal D. W. 2 had constructed it on his behalf. He also stated when he had in talk with the respondent he was told that this land was taken by him from Kabool Chand. From the cross-examination of this witness it appears that he was not summoned to come in evidence. He only came at the behest of Phool Chand respondent. In further cross examination the witness showed complete ignorance about the pieces of land lying in the neighborhood of the school. He did not know the season when it was constructed. He did not know many other details which were enquired from him. Nathu Lal, D. W. 2 claims that he had constructed the room in question on behalf of respondent and the respondents paid him the labour charges. The witness did not remember even approximately the total labour charges that were paid to him. He was also not summoned by the Court. Similarly Rajendra Singh D. W. 3 and D. W. 4 Bashir Ahmad had supported the defence that the room in question was got constructed by the respondent from Nathu Lal D. W. 2 mason but in their cross-examination, they showed ignorance about the amount that were paid and they also showed similar ignorance about many other details. The defence witnesses are therefore, unreliable witnesses. The learned special Judicial Magistrate has given cogent reasons for disbelieving these witnesses and convicting the respondent, I do not see any reason to disagree with his conclusion. However, the offence that is made out against the appellant is only under Section 447 I. P. C. and not under Section 448 I. P. C. The appeal, is therefore, allowed. The order of the acquittal of the respondent passed by the learned Sessions, Judge is set-aside. Respondent is convicted under Section 447 I. P. C. and sentenced to pay a fine of Rs. 500/ -. In default of payment of fine he shall undergo R. I. for 15 days. The respondent shall be allowed one months' time the date of receipt of the record by the Court below to deposit the fine. .