STEEL AUTHORITY OF INDIA LTD Vs. AELTEMESH REIN

JUDGEMENT

(1.) THIS order shall also dispose of Misc. Criminal Case No. 536 of 1982, Aeltemesh Rein and Anr. v. Steel Authority of India Ltd. as both the cases arise out of the same set of facts. For brevity's sake, Steel Authority of India Ltd. is being described as SAIL. This is an application by SAIL under Section 482 of the Criminal P. C. 1973, for quashing the order of the Additional Sessions Judge, Durg, in Criminal Revision No. 90/1980 dated 30. 1. 1981 discharging Aeltemesh Rein and M. M. Rein under Section 245 (2) of the Code for the offence under Section 454 I. P. C. The other application is under Section 482 of the Code for. quashing the prosecution of Aeltemesh Rein and Smt. Saiyada Mosarrat under Section 11 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Act ).

(2.) AELTEMESH Rein is the son of M. M. Rein and Smt. Saiyada Mosarrat and they are living together. M. M. Rein is an employee in the Bhilai Steel Plant run by SAIL. His wife Smt. Saiyada Mosarrat was given a licence for plot No. 2, measuring 1794 square feet in Sector No. 1, Bhilai, for running a cycle rickshaw garage and repair shop. It appears that Smt. Saiyada Mosarrat erected a structure over the plot and was running her shop there. However, her licence was cancelled for breach of license conditions and proceedings started for her eviction under the Act. By order dated 26. 4. 1974 Smt. Saiyada and another were directed to vacate the plot by the Estate Officer. Appeal was preferred before the District Judge which was dismissed. A writ petition to this Court and further special leave petition to the Supreme Court also failed. Estate Officer took possession on 30. 9. 1975 of the land and structure. In the meanwhile, Smt. Seiyada filed civil suit challenging the order of eviction by the Estate Officer. She also applied for temporary injunction which was refused and the order maintained in appeal by the Addl. District Judge and in revision by this Court. Then Special Leave Petition No. 4611/77 was filed in the Supreme Court and Smt. Saiyada was again placed in possession of the prentises on 24. 11. 1977. But the Special Leave Petition was ultimately dismissed and the Estate Officer retook possession on 22. 3. 1978 preparing an inventory of the articles found in the premises. Smt. Saiyada filed Special Leave Petition No. 3615/78 in the Supreme Court and on 25. 4. 1978 the Court directed that all the articles found in the premises be returned to her, which has been complied with. But Aeltemesh Rein filed criminal case against some of the employees of SAIL alleging that some of the articles have not been returned and misappropriated by them. The case has been registered under Sections 218 and Section 406 read with Section 34 I. P. C. and confirmed by this Court in Misc. Cr. Case No. 69/80. An appeal to the Supreme Court by the SAIL is pending.

(3.) ON 11. 5. 1978 SAIL filed complaint case No. 1223/78 under Section 11 of the Act alleging that on the night of 6. 5. 1978 Aeltemesh, his parents and servant Raju, have after being evicted, illegally retaken possession of the premises by breaking open the locks. The case has been registered only against Aeltemesh and his mother. The SAIL filed another complaint case No. 1409/78 on 23. 12. 1978 against the above four persons under Section 454 I. P. C. on the allegations that Aeltemesh, his father and servant Raju have illegally retaken possession on the night of 6. 5. 1978. The case was registered only against the last three but Raju was given up and discharged later on. In Cr. Case No. 1409/78 Aeltemesh filed an application under Section 245 (2) of the Code for dispharge from the case as the charge was groundless and the second complaint on the same facts is barred in view of Section 26 of the M. P. General Clauses Act. The learned Magistrate rejected the application saying that since the ingredients of the two offences are different, Section 26 is not attracted and that it cannot be said that charges are groundless. In revision, the Addl. Sessions Judge discharged Aeltemesh Rein and his father on 30. 1. 1981 by holding that though there is no bar for simultaneous prosecution but no offence of criminal trespass as laid down in Section 441 I. P. C. is made out as it has not been shown that by their action Reins, have insulted, intimidated or annoyed the complainant. Besides, their action is also protected as the Reins have acted under a bona fide claim of right as the structure belonged to them and they had a right to enter into it and so the trespass is of a civil nature. Against this order, Misc. Cr. Case No. 918/81 has been filed by the SAIL. Armed with the impugned order Reins have filed an application on 15. 4. 1981 under Section 245 (2) of the Code in the earlier complaint case under Section 11 of the Act for discharge as the eviction order without notice to Aeltemesh is bad, besides they have acted bona fide in entering into their structure. The learned trial Magistrate rejected the application saying that it being a summons case, Section 245 (2) is not applicable and there can be no discharge without recording evidence in a summons case. The order has been maintained by the Sessions Judge in revision. The Reins have filed Misc. Cr. Case No. 536/82 for quashing of the prosecution under Section 11 of the Act,