INAL RAGHUNATH Vs. STATE OF ORISSA

JUDGEMENT

(1.) Order dated 6 -3 -1992 passed by the learned Subdivisional Judicial Magistrate, Chatrapur (in short,'SDJM') taking cognizance of an offence punishable Under Section 448 of the Indian Penal Code, 1860 (in short, 'IPC') and directing issue of summons to the petitioner is assailed in the application under consideration. According to the petitioner, essential ingredients necessary to constitute an offence punishable Under Section 448, IPC are squarely absent. In spite of notice, Choudhury Jagannath Rao (opp. party No. 2 herein) on the basis of whose information the case was instituted has not appeared.

(2.) IN a case where challenge is about absence of essential ingredients relating to an offence, the same is to be agitated before the Court taking cognizance, as observed by the apex Court in K. M. Mathew v. State of Kerala and Anr. ; (1992) 5 OCR 66, According to the petitioner, ha has filed all the relevant documents and in spite of notice the informant has not chosen to appear and contest, and therefore case should be taken up for adjudication on merits. in my view such a course would not be proper. However, the factual and legal positions need to be mentioned,, so that learned Magistrate shall keep those in view if a motion for re -consideration is made.

(3.) SECTION 441, IPC as amended by Orissa Act 22 of 1986 defines criminal trespass, which, when committed in respect of, inter alia, a human dwelling, becomes an offence punishable Under Section 448, IPC. Ordinarily a dispute between a tenant and the landlord regarding vacation of a premises after the tenancy is over is a civil dispute and unless an offence of criminal trespass can be said to have been committed. criminal prosecution of the tenant would not lie, except those cases covered by the Orissa Amendment. Section 441, IPC as it has been substituted by Orissa Act 22 of 1986 reads as follows : 'Whoever enters into or upon property in possession of another with intant to commit an offence or the intimidate, insult or annoy any peron 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 lawfully entered into or upon such property, remains there with the intention of taking unauthorised possession or making unauthorised use of such property and 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 on him, is said to commit criminal trespass.' The substituted section consists of three parts. The first part relates to intention to commit the offence. The paramount consideration is that the person concerned must have entered upon the property of another with intent to commit an offence or to intim date, insult or annoy any parson in possession of the property. It has no application where any person has lawfully entered into the house and has taken possession thereof. Second part applies if one has lawfully entered into or upon the property but unlawfully remains there with intent to intimidate, insult or annoy any person or with intent to commit an offence. Where the initial entry may be lawful but continuance in the pemises subsequently becomes unlawful, the offence is committed, if the person remains thereon unlawfully for any of the purposes enumerated. The third part requires that if a parson has lawfully entered the premises and remains there with the intention of (i) taking unauthorised possession; or (ii) making unauthorised use of such property; and (iii) fails to withdraw from such property or its possession or use when called upon to do so by notice in writing duly served on him. he is said to have committed the offence. The entry to attract application of the third part must be legal but the continuance to remain in the premises must be with the intention of taking unauthorised possession or making unauthorised use of it, and failing to withdraw in spite of a notice. Both the conditions must be satisfied to attract the provision. In other words continuance in the premises must be with the intention of taking unauthorised possession or making unauthorised use of it even though such intention was not there in the beginning at the time of the entry and secondly the notice given to withdraw from the property or dispossession or use is not complied with. The offence is not committed until a notice in writing has been given to the person to vacate the premises and he has disregarded it. The third part of the second applies to the possession of a tenant whoso tenancy has been terminated. Originally intention of the tenant may not be to commit an offence, but the moment the tenancy is terminated and he is asked to vacate his possession becomes unauthorised and his use thereof also becomes unauthorised. If the possession or use is continued, mischief is committed provided a notice is given calling upon him to vacate the premises and not to use and he does not comply. A person who has lawfully entered into the premises may develop an intention to take unauthorised possession of the premises even before his right to lawfully continue in the premises ceases. In a given case while the person is lawfully in the premises. may develop the intention to put the same to an unauthorised use. But such intention would not constitute an offence unless the intention has become manifested in some overt act from which it can be inferred that the person concerned has developed the intention of taking unauthorised possession of the property or to put it to unauthorised use. Once such intention becomes manifest, notice has to be given asking him to withdraw from the property of its possession or use Obviously no notice can be given unless the person entitled to give it has become aware of the wrongful intention. To put it differently where a tanancy has come to an end and a tenant has been asked to vacate and he does not do so, it means that there is an intention to continue in possession which is not authorised and to put the premises to such use which is also not authorised.