SAVANI TRANSPORT LTD Vs. KAMRAJU BISOI

JUDGEMENT

(1.) The S. D. J. Mr. Berhampur having taken cognizance against the petitioners u/S. 448 I.P.C. on a complaint filed by the opposite party, the petitioners have invoked the inherent powers of this Court to quash the cognizance taken as well as the proceeding against them. The admitted facts are that the petitioner No. 1 took the shop house of the opposite party on rent in pursuance of a rent-deed executed on 5-7-86. At the time the deed was executed one Mr. M. V. Prasad through whom the petitioner No. 1 is represented as per the complaint petition was the Branch Manager but he has since been transferred and the petitioner No. 2 has taken over charge as the Branch Manager. As per the agreement the tenancy was to expire on 5-6-89, but prior to that on 1-5-89 the opposite party gave a notice to petitioner No.2 to vacate the premises by 5-6-89. A reply was sent by the petitioners' advocate to the opposite party on 19-5-89 stating that the notice was not legal, that it was not possible for his client to vacate the premises within the short period and that his client preferred to occupy the house paying rent as usual. On 9-6-89 the advocate for the petitioners sent a further reply to the opposite party by way of a rejoinder requesting him to desist from illegal and forcible acts and informing him that if he chose to resort to speculative litigation, it would be at his risk and that the rent of the house should be reduced to Rs.400/- per month. Thereafter the opposite party's advocate sent a letter to the advocate for the petitioners on 15-9-89 requesting that he should instruct his client to vacate the premises within fifteen days of receipt of the notice. On 27-9-89 a reply was sent by the advocate for the petitioners to his counterpart that action as threatened might be taken in the Court of law which was welcome and that correspondence in the matter might be set at rest. The opposite party thereafter filed the complaint on 6-11-89 alleging the petitioners to have committed criminal trespass over his property punishable u/S. 448 I.P.C. The learned Magistrate after examining the complainant u/ S. 200 Cr. P.C. and recording the statements of witnesses u/S. 202 Cr. P.C. as also perusing the documents was of the view that there was sufficient ground to proceed against the petitioners in view of the Orissa Amendment to S.441 I.P.C. by Orissa Act 22/86 and hence took cognizance of the case.

(2.) Mr. Y. S. A. Murty, learned counsel appearing for the petitioners, has urged : -

(3.) The core question that falls for consideration in this case is the interpretation of the Orissa Amendment to S. 441 I.P.C. defining criminal trespass, which when committed in respect of, inter alia, a human dwelling, becomes an offence u/S. 448 I.P.C. It is the consensus of the learned counsel for the parties that ordinarily a dispute between a tenant and landlord regarding vacation of a premises after the tenancy is over is a civil dispute and that unless an offence of criminal trespass can be said to have been committed by invoking the provisions of the Orissa Amendment, the criminal prosecution of the petitioners would not lie. It is for such reason that I would take up such question first. For an appreciation of the submissions raised, S. 441 I.P.C. as it stands substituted by the Orissa Act 22/86 may be usefully extracted :