Criminal Appeal No 69 of 1981 Appeal by special leave from the Judgment and order dated the 16th December 1980 of the Allahabad High Court in Criminal Appeal No 342 of 1976
Soli J Sorabjee RK Jain RP Singh and Natin Mohan Popli for the Appellant
PR Mridul Praveen Kumar AK Sharma and Dalveer Bhandari for the Respondent
The Judgment of the Court was delivered by MISRA J
The present appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad 873 dated 16th December 1980 convicting the appellant under section 448 of the Indian Penal Code
Premises Aranya Kutir bearing Municipal No 47A Jakhan in Dehra Dun was owned by one RC Sood
He executed a gift deed in favour of Shri Anand Mayee Sangh Dehra Dun with the stipulation that the donor shall remain in possession of the premises during his life time and after his death his widow if alive would remain in possession
The management of the same would be taken up by the Sangh after their death
The appellant is the widow of the brother of Shri RC Sood
It appears that in 1967 the appellant was invited by Shri RC Sood to reside with him in the aforesaid house and ever since she has been residing peacefully there
On 10th of October 1973 Shri RC Sood expired
The appellant however continued to live in the said house
Respondent No 1 Shri Nawal Kishore as Secretary of the aforesaid Sangh served a notice dated 13th November 1973 on the appellant asking her to vacate the premises in dispute immediately failing which a criminal action under section 448 of the Indian Penal Code would be taken against her as her further stay in the premises would be deemed to be in the nature of a criminal trespass
The appellant however did not vacate the premises as she was convinced that her stay in the said premises could not amount to criminal trespass
Respondent No 1 Shri Nawal Kishore thereupon filed a complaint under section 448 of the Indian Penal Code against the appellant in the Court of Sub Divisional Magistrate Mussoorie
He examined himself as PW 1 and also produced Shri K Bose as PW2
The appellant in her statement under section 313 as well as in her statement as a witness DW 1 admitted the services of notice on her but denied that any criminal action was called for
She further stated that she had met Anand Mayee who had permitted her to live in the house
The learned Magistrate however took the view t hat the premises in dispute has been vested in the Anand Mayee Sangh by 874 virtue of the gift deed and a notice to vacate having been served upon the appellant the continued stay of the appellant in the said premises amounted to a criminal trespass within the meaning of section 441 of the Indian Penal Code
He accordingly convicted the appellant under section 448 to the Indian Penal Code and sentenced her to pay 1 fine of Rs 100 and in default to undergo simple imprisonment for 40 days
In addition the learned Magistrate also passed an order directing the appellant to vacate the premises within two months of the passing of the order purporting to be one under section 456 of the Criminal Procedure Code
The appellant feeling aggrieved by the order of the learned Magistrate went up in appeal and took up various grounds
The learned Sessions Judge allowed the appeal set aside the order of the learned Magistrate and acquitted the appellant by his judgment Dated 19th August 1975
Respondent No 1 Shri Nawal Kishore assailed the order of acquittal by filing criminal appeal in the High Court and the High Court in its turn allowed the appeal and reversed the order of acquittal passed by the learned Sessions Judge and convicted the appellant
In the opinion of the High Court the appeal filed by the appellant before the Sessions Judge was incompetent as no appeal could lie against the imposition of fine
It also took the view under the provisions of section 4015 of the Criminal Procedure Code it is permissible to treat a revision as an appeal but not vice versa
It therefore declined to treat the appeal against the order of Magistrate as a revision
The High Court further expressed the opinion that the appellant may file a revision if she so chooses which would be considered by the Court of Admission and then It proper the same may be allowed
The appellant feeling aggrieved by the judgment of the High Court bas filed the present appeal with the special leave as stated earlier
Shri Soli J Sorabji appearing for the appellant has contended that on the allegations made in the complaint no offence under section 411 of the Indian Penal Code is made out
In order to appreciate the contention it will he appropriate at this stage to read section 441 of the Indian Penal Code 441
Criminal trespass  Whoever enters into or upon property in the 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 875 there with intent thereby to intimate insult or annoy any such person or with intent to commit an offence
is said to commit criminal trespass
There has been local amendment by UP Act 31 of 1961 for section 441 of the Indian Penal Code 1 960 the following shall be substituted 441
Criminal Trespass Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidiate 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 intimidiate insult or annoy any such person or with intent to commit an offences or having entered into or upon such property whether before or after the coming into force of the Criminal Law UPAmendment Act 1961 with the intention of taking unauthorised possession or making unauthorised 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 
It may be pointed out that the appellant was allowed to occupy the premises in 1967 by Shri RC Sood
Under the terms of gift deed Shri Sood was entitled to remain in occupation of the premises during his life time
He could as well grant leave and licence to p the appellant to occupy the premises along with him
Now the question arises about her status after the death of Shri RC Sood
At the most it can be said that after the death of Shri Sood the leave and license granted by Shri Sood came to an end and if she stayed in the premises after the death of Shri Sood her possession may be that of a trespasser but every trespass does not amount to criminal trespass within the meaning of section 141 of the Indian Penal Code
In order to satisfy the conditions of section 441 it must be established that the appellant entered in possession over the premises with intent to commit an offence
A bare persual of the complaint filed by Respondent No I makes it abundantly clear that there is absolutely no allegation about the intention of the appellant to commit any offence or to intimidate insult or annoy 876 any person in possession as will be evident from three material paragraphs which are quoted below 2
That the late Shri RC Sood was occupying the said premises in accordance with clause No I of a gift deed executed by him in favour of Shri Anand Mayee Sangh and after his demise the said premises had to be delivered to Shri Anand Mayee Sangh
That after the demise of Shri R
Sood the accused was repeatedly requested to voluntarily vacate and deliver the possession of the said premises to the Sangh but the accused paid no heed and hence a notice dated 13111973 copy of which enclosed was sent to the accused as required by UP Amendment of Section 448 IPC the said notice was served upon accused on 141173 as per postal AD receipt attached herewith
That the accused was required to quit and vacate the said premises by the 20th day of November 1973 but instead of vacating the premises the accused has been making unusual pretext and has thus committed an offence under section 448 IPC The appellant may be fondly thinking that she had a right to occupy the premises even after the death of Shri RC Sood
If a suit for eviction is filed in Civil Court she might be in a position to vindicate her right and justify her possession
This is essentially a civil matter which could be properly adjudicated upon by a competent Civil Court
To initiate criminal proceedings in the circumstances appears to be only an abuse of the process of the Court
We also do not agree with the view taken by the Court that the appeal filed by the appellant before the Sessions Judge was incompetent
If the learned Magistrate had only awarded a sentence of fine in that case revision alone would be competent and not an appeal but in the instant case the Magistrate not only awarded the fine of Rs 100 but also directed the appellant to vacate the premises within two months from the date of the order
This part of the order presumably was passed under section 456 of the Criminal Procedure Code and this made the order appealable and the High Court has gone wrong in holding that appeal filed by the appellant before the Sessions Judge was not maintainable
877 There were certain other pleas taken by the respondent before the High Court but it is not necessary to refer to those pleas in the view that we have taken that on the complaint itself no offence under section 448 of the Indian Penal Code is made out
For the foregoing discussion the appeal must succeed
It is accordingly allowed
The judgment of the High Court dated 16th December 1980 is set aside and that of the Court of Sessions is restored
The bail bond if any shall be cancelled
SR Appeal allowed


Summary:
Premises Aranaya Kutir bearing Municipal No 47A Jakhan in Dehradun was owned by one Shri RC Sood
He executed a gift deed in favour of Shree Anand Mayee Sangh Dehradun with a stipulation that the donor shall remain in possession of the premises during his life time and after his death his widow if alive would remain in possession
The management of the same would be taken up by the Sangh after their death
In 1967 the appellant the widow of the brother of Shri RC Sood was invited by Shri Sood to reside with him in the aforesaid house and ever since she has been residing peacefully there
On 10th of October 1973 Shri RC Sood expired
Respondent No 1 Shri Nawal Kishore as secretary of the Anand Mayee Saogh served a notice dated 13th November 1973 on the appellant asking her to vacate the premises immediately and threatening to take criminal action against her on failure to do so as her further stay in the premises would be deemed to be in the nature of a criminal trespass
When the appellant did not vacate the premises respondent No 1 filed a complaint under section 468 of the Penal Code
The Sub Divisional Magistrate Mussorie found that the continued stay of the appellant amounted to criminal trespass within the meaning of section 441 of the Penal Code convicted her under section 448 and sentenced her to pay a fine of Rs 100 or in lieu thereof to undergo simple imprisonment for 40 days
In addition the learned Magistrate also passed an order directing the appellant to vacate the premises within two months of the order purporting to be one under section 456 o the Criminal Procedure Code
The appeal preferred by the appellant was allowed and the conviction and sentence passed were set aside
Respondent No 1 therefore assailed the order of acquittal by filing a criminal appeal before the High Court
The High Court allowed it and reversed the order of acquittal passed by the Sessions Judge and convicted the appellant
In the opinion of the High Court the appeal filed by the appellant before the Sessions Judge was incompetent as no appeal would lie against the imposition of fine
The High Court declined to treat the appeal as a division in as much as under the provisions of section 4015 of the Criminal 872 Procedure Code it is permissible to treat a revision as an appeal but not vice versa
Hence the appeal by special leave
Allowing the appeal the Court  HELD 11
In order to satisfy the conditions of section 441 of the Penal Code it must be established that the party complained of entered in possession over the premises with intent to commit an offence
Every trespass does not amount to criminal trespass within the meaning of that section
875 G 12
Initiating criminal proceedings in the circumstances of this instant case is only an abuse of the process of the court
This is essentially a civil matter which could be properly adjudicated upon by a competent civil court
a The appellant was allowed to occupy tho premises in 1967 by Mr Sood perhaps on lease and license  basis
b A bare perusal of the complaint filed by Respondent No 1 makes it abundantly clear that there is absolutely no allegation about the intention of the appellant to commit any offence or to intimidate insult or annoy any person in possession and c If a suit for eviction is filed in the civil court the appellant who may be fondly thinking that she had a right to occupy the premises even after the death of Shri Sood might be in a position to vindicate her right and justify her possession
875 E H 876 A E F 2
The appeal filed by the appellant before the Sessions Judge was competent and maintainable
If the learned Magistrate had only awarded a sentence of fine in that case revision alone would be competent and not an appeal
But in the instant case the Magistrate not only awarded the fine of Rs 100 but also directed the appellant to vacate the premises within two months from the date of the order
This part of the order presumably was passed under section 456 of Criminal Procedure Code and this made the order appealable
876 F H