Criminal Misc. No.M-5286 of 2009 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Misc. No.M-5286 of 2009 Date of decision: 1.5.2009 Mohan Singh ......Petitioner Versus State of Punjab and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.R.S.Athwal, Advocate, for the petitioner. Mr.Aman Deep Singh Rai, AAG, Punjab. **** SABINA, J. The petitioner has filed this petition under Section 482 of the Code of Criminal Procedure (“Cr.P.C.” for short) for quashing FIR No. 20 dated 7.3.2008 (Annexure P-1), under Section 447 of the Indian Penal Code (“IPC”- for short) registered at Police Station Rahon and the report under Section 173 Cr.P.C (Annexure P-2) and all the subsequent proceedings. FIR in question was registered on the basis of complaint made by Sub Divisional Magistrate, Nawanshahr. As per the Criminal Misc. No.M-5286 of 2009 2 complaint, it was brought to the notice of the complainant by Executive Officer, Municipal Council, Rahon vide letter dated 7.3.2008 that boundary limits of Rahon Nagar Council were extended on 23.1.2006. Now cremation ground came within the municipal limits. In this area, some persons had already raised permanent constructions. Harwinder Singh had raised construction of one plot. It was recommended by the complainant that a case be registered against Harwinder Singh under Section 447 IPC. During investigation, Deputy Superintendent of Police, Nawanshahr vide report dated 6.12.2008 (Annexure P-3) submitted that Harwinder Singh, Mohan Singh, Daulat Ram, Hardev Singh, Paramjit and Gurdev Singh had not trespassed into the land in question. These persons were already in possession of the land. In case any person or institution had any objection regarding their possession, recourse could be taken to law but no criminal case was made out against them. However, vide Annexure P-2, challan was presented against the petitioner and others. After hearing learned counsel for the petitioners, I am of the opinion that no offence under Section 447 IPC is made out in this case. In the case of State of Haryana vs. Bhajan Lal , , 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:- “The following categories of cases can be stated by way Criminal Misc. No.M-5286 of 2009 3 of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:- (1)Where the allegations made in the first information report or the complainant, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2)Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. Criminal Misc. No.M-5286 of 2009 4 (4)Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code. (5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party. (7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” Section 447 IPC reads as under:- “Punishment for criminal trespass- whoever commits Criminal Misc. No.M-5286 of 2009 5 criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine or which may extent to five hundred rupees or with both.” Section 441 IPC reads as under:- “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 there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass” In the present case, no recommendation was made by the complainant for registration of FIR against the petitioner under Section 447 IPC. It is only during investigation of the case, petitioner was also found to have encroached upon the land belonging to the cremation ground, Rahon. Thus a reading of Section 441 shows that where a person enters into the property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person of such property or having lawfully entered into such property, unlawfully remained there with intent thereby to intimidate, insult or annoy any person or with intention to commit an offence is said to Criminal Misc. No.M-5286 of 2009 6 commit criminal trespass. Admittedly, the petitioner has raised construction over the property in question. In case, he is not found to be owner of the said property, it can be said that he has encroached upon the property belonging to municipal council or any other person. For that recourse would be under the Civil law but no offence under Section 447 IPC can be said to be made out against the petitioner. Accordingly, the present petition is allowed. The FIR No. 20 dated 7.3.2008 under Section 447 IPC (Annexure P-1) registered at Police Station Rahon and the report under Section 173 Cr.P.C (Annexure P-2) and all the subsequent proceedings are quashed. (SABINA) JUDGE May 01, 2009 anita