RITA SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application has been filed by the petitioner Rita Singh for quashing the order dated 17.12.2004 passed by the Judicial Magistrate, 1st Class, Patna rejecting the prayer of the petitioner for discharge in S.K. Puri RS. Case No. 1 of 1996 G.R. No. 81 of 1996.

(2.) PETITIONER is an accused in S.K. Puri PS. Case No. 1 of 1996 instituted for offence under sections 448, 341, 384 and 120B of the Indian Penal Code. The informant of this case is Smt. Prem Lata Singh who is mother -in -law of the petitioner. The informant has alleged that she is Mistress of the house situated at Boring Road near Water Tower, Patna. She is residing at London with her husband Satrughan Prasad Singh and son Rajesh Kumar Singh. One T.N. Dubey was appointed as care -taker of the house. On 13.12.1994 she was telephonically informed by the care taker that Smt. Rita Singh, Premlata Singh, ex -daughter -in -law has forcibly and unauthorisedly occupied first floor of the said house. She was accompanied by her uncle Purushotam Kumar Singh and brother -in -law Vivek Singh. T.N. Dubey lodged an F.I.R. regarding this matter with S.K. Puri RS. When Premlata Singh received the copy of the F.I.R. lodged by Dubey to the Officer -in charge, S.K. Puri Police Station she found that statement has not correctly been mentioned in the F.I.R. It seem that due to threat and financial allurement T.N. Dubey had connived with the trespassers. Rita Singh trespassed her property alongwith others being fully aware at the time of trespass that she was no longer informant 'sdaughter -in -law. There was no consent of the informant given to Rita Singh for entering into the house. In the facts and circumstances a request was made in the affidavited letter that the S.K. Puri police station be ordered to remove the alleged trespassers forthwith from her property, institute a criminal case against them and the house in question be sealed. Mrs. Prem Lata Singh had sent this letter to the Director General of Police alongwith sale deed relating to the property, marriage certificate, divorce certificate, F.I.R. instituted by T.N. Dubey and her own affidavit sworn on 30.1.1995. This letter was treated as F.I.R. and on that basis S.K. Puri PS. Case No. 1 of 1996 was instituted against the petitioner and others for offence under sections 448, 341, 381 and 120B of the Indian Penal Code.

(3.) COUNSEL for the petitioner submits that the evidence which has been collected by the Investigating Agency in course of investigation do not indicate that a prima facie case under sections 448, 341 and 120B of the Code is not made out against the petitioner in view of the fact that the petitioner is daughter -in -law of the informant Smt. Prem Lata Singh. Though in the F.I.R. it has been stated that on the basis of ex parte divorce decree granted by the Watford county court this petitioner is no more her daughter -in -law. But so far the ex parte decree of divorce passed by foreign court is concerned it is not enforceable and can be collaterally impeached by this Court. It has also been stated that the son of the informant has not executed the said foreign decree in India as such on the basis of this divorce decree it cannot be alleged that the petitioner has committed an offence of trespass by entering into or residing in her matrimonial house. It has also been stated that in the F.I.R. as well as in the statement of the informant her husband, daughter and son (husband of the petitioner) recorded under sec. 161 Cr.P.C. there is no allegation of annoyance, insult to Mr. T.N. Dubey or the informant. Only request of the informant for restoration of possession of the house in question which was occupied by the petitioner. Apparently the informant wanted that her civil rights be enforced. On the basis of such allegations no case of trespass is prima facie made out. It has also been stated that the petitioner was living in the house under the bona fide believe that being the daughter -in -law and the house being her matrimonial house she has right to live in that house. Considering the bona fide believe of the petitioner every trespass is not an offence. Even well founded entry upon land or house made under bona fide claim of right does not become crime. In order to substantiate her claim of bona fide it has been stated that the petitioner has filed title suit no. 1 of 1997 for declaration that she has right to reside in the house in question. The maintainability of the suit was challenged by the informant who is defendant in the suit. Question of maintainability of suit raised by defendant was dismissed by the Subordinate Judge, Patna and this order has been affirmed by the High Court and the Supreme Court. In the suit status quo has been granted in favour of the plaintiff petitioner so far occupation of the house is concerned, till the hearing of the injunction petition and the status quo order is continuing in favour of the petitioner. The possession or occupation of the house, under the valid orders of the court, cannot be considered a trespass.