1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CRIMINAL MISC. PETITION NO. 740/2008 R.S. Agarwal vs. State of Rajasthan & Anr. Date of Order: 18th March, 2009. HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Reportable Mr. S.K. Gupta, for the petitioner. Mr. Javed Choudhary, Public Prosecutor. Mr. A.K. Gupta, for non-petitioner No. 2. By the Court:- By this criminal miscellaneous petition, the petitioner has prayed for quashing of the First Information Report No. 63/2008, registered at Police Station Mahesh Nagar, Jaipur City (South), Jaipur. Further, it is prayed that the proceedings arising out of the said Report be also quashed. 2. Briefly stated, the facts of the case are that the petitioner is the owner of House No. B-40, Ganesh Nagar, Sodala, Jaipur. The said house was purchased in the year 1988. The size of the plot of the petitioner is 51x75 sq. feet and the construction had been raised, by the earlier owner, on an area measuring 47x75 sq. feet, leaving four feet strip of land on the eastern side, that is the back of the house, so as to give space to the projection over the windows and flow of water from spouts, etc. 3. Thereafter, the complainant-non-petitioner started raising construction on the back side of the petitioner's house. This resulted in encroachment upon the four feet wide strip of 2. land, left by the seller while raising construction, from whom the petitioner had purchased the house. Consequently, the non- petitioner No.2 caused obstruction/hindrance in the use of the strip of land by the petitioner. 4. The instant First Information Report came to be filed by non-petitioner No. 2 on 02.03.2008 and the same was registered as FIR No. 63/2008, at Police Station Mahesh Nagar for the offence under Section 447 IPC. The said FIR has been placed on record as Annexure-3. 5. It has been contended by the learned counsel for the petitioner that a bare reading of the impugned First Information Report do not make out any offence. According to him, the contents of the First Information Report do not disclose the offence under Section 447 IPC. Secondly, he has submitted that the action of lodging the impugned report by non-petition No. 2 was wholly malafide. Thirdly, the learned counsel for the petitioner has submitted that at the most, the dispute between the parties is of a civil nature. In support of his submissions, the learned counsel for the petitioner has placed reliance on the case of K.L.E. Society & Ors. vs. Siddalingesh, 2008 Cr.L.R. (SC) 225 and that of Avad Dan & Ors. vs. State of Rajasthan, 2008 (1) Cr.L.R. (Raj.) 689. 6. On the other hand, the learned Public Prosecutor and the counsel for non-petitioner No. 2 have submitted that from 3. the statement of the witnesses recorded under Section 161 Cr.P.C., which is also to be seen, it is revealed that the petitioner has committed the offence of criminal trespass. In other words, according to the learned counsel for non-petitioner No. 2, the evidence recorded during the course of investigation is also to be considered at the time of quashing of the First Information Report. Therefore, he has submitted that the offence of criminal trespass is made out in the instant case and this miscellaneous petition deserves to be dismissed. In support of his submissions, the learned counsel for non-petition No. 2 has placed reliance on the cases of State of Haryana & Ors. vs. Bhajan Lal & Ors., AIR 1992 SC 604; State of T.N. vs. Thirukkural Perumal, (1995) 2 SCC 449; Mushtaq Ahmad vs. Mohd. Habibur Rehman Faizi & Ors. AIR 1996 SC 2982; M. Narayandas vs. State of Karnataka & Ors., (2003) 11 SCC 251 and Renu Kumari vs. Sanjay Kumar & Ors., (2009) 1 SCC (Cri) 426. 7. I have given my anxious and thoughtful consideration to the rival submissions made by the counsels for the parties. In this case, the impugned report had been lodged by non-petitioner No.2 alleging that the offence of criminal trespass has been committed by the petitioner by converting a window into a door. The relevant lines of the impugned report reads as under:- "आज सुबह ौी अमवाल ने इनमɅ से दǔ¢ण कȧ ओर पूव[ खुलती ǔखड़कȧ को हटाकर उसकȧ जगह दरवाजा बना Ǒदया है तथा इस ूकार हमारे कÞजे व ःवािम×व कȧ भूिम पर दरवाजा िनकाल कर ौी आर. एस. अमवाल ने आपरािधक अितचार Ǒकया है |” 4. In other words, it is the case of the complainant-non- petitioner that by opening a door in place of a window, which was overlooking the eastern side, the petitioner has committed the offence of criminal trespass. 8. It is relevant to mention here as to what amounts to criminal trespass, as given under the provisions of Section 441 IPC, which is punishable under Section 447 IPC. Section 441 of Indian Penal Code reads as under:- “Section 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 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'.” It is clear from the aforesaid provisions that one who enters into or upon the property, in the possession of another, with an intent to commit an offence or to intimidate, insult or annoy the person who has in possession and also who has lawfully entered into or upon such property, unlawfully remains there with the intent to intimidate, insult and annoy such person amounts to criminal trespass. 9. In the instant case, the contents of FIR does not reveal about entering into or upon the property, which is in possession of non-petitioner No.2. Without going into the 5. question as to whether the strip of land measuring four feet in width, lying on the eastern side of the house of the accused- petitioner, is under his ownership or not, the very averments made in the First Information Report are that the petitioner has opened a door in place of a window in his house. In my considered opinion, such an averment made in the First Information Report do not disclose commission of an offence of criminal trespass, as given under Section 441 IPC. In such view of the matter, there is no question of the offence under Section 447 IPC, having been made out from the contents of the impugned report. 10. In the case of State of T.N. vs. Thirukkural Perumal (supra), relied upon by the counsel for the petitioner, the Hon'ble Supreme Court observed that “From a bare perusal of the order of the learned Single Judge, it appears that while quashing the proceedings, reliance has been placed upon some evidence collected by the investigating agency during the investigation. The approach of the learned Judge in relying upon such evidence, which is yet to be produced before the trial court, to quash the criminal proceedings in criminal case No. 246/92 (supra) was not proper.” That being the principle of law laid down by the Hon'ble Apex Court, in my view, the submissions made by the counsel for non-petitioner No.2, by relying upon the statements recorded under section 161 Cr.P.C., is not at all sustainable. It is the contents of the report alone and not the evidence recorded subsequently during the investigation, is to be 6. looked into by this Court. It was on that ground, namely the evidence collected by the Investigation Agency, was considered by the High Court, that the Hon'ble Supreme Court had allowed the appeal and set aside the order of the High Court. 11. Similarly, in the case of Mushtaq Ahmad (supra), the Hon'ble Supreme Court allowed the appeal and set aside the impugned order passed by the High Court and directed the Magistrate to proceed with the complaint in accordance with law because the High Court had entered into the debatable area of deciding, which of the version given by the parties was true. In that case, the complaint and the documents annexed thereto, had made out a prima facie case for cheating, breach of trust and forgery but even then the High Court had proceeded to consider the version of the respondents given out in their petition filed under Section 482 Cr.P.c. that the Hon'ble Supreme Court had set aside the impugned order passed by the High Court. In the instant case, it is the counsel for the non-petitioner No.2, who has advanced his submissions on the premise of the evidence, other than the contents of the report, so as to show that the offence alleged is made out. The principle of law is very clear that it is only the contents of the First Information Report which is to be looked into, as to whether the offence alleged is made out or not, at the time of considering the prayer for quashing of a First Information Report. Conversely is not true, that is to say that the other evidence recorded during the investigation etc. is to be looked 7. into alongwith the contents of report so as to see that the offence alleged is made out. In case, the contents of the complaint/report does not disclose the offence alleged, then the evidence recorded subsequently is not relevant and cannot be taken into consideration, while exercising the inherent powers, for quashing of the First Information Report. 12. In case of Renu Kumari (supra), it had been held by the Hon'ble Supreme Court that the allegations of malafides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. It has been observed by the Hon'ble Court that when an information is lodged at the police station and an offence is registered, then the malafides of the informant would be a secondary importance. It is the material collected during the investigation and evidence led in the Court which decides the fate of the accused person. In the instant case, the specific case of the accused-petitioner is that from the contents of the First Information Report itself no offence, alleged by the non-petitioner No.2, is at all made out. Therefore, the case of Renu Kumari (supra) is not applicable in the facts and circumstances of the case. 13. In the case of M. Narayandas (supra), the Hon'ble Supreme Court had laid down that the Court cannot inquire about reliability or genuineness or otherwise of the allegations made in the report. Further, it held that the Court has no power to inquire as to whether allegations are likely to be established 8. or not. In that case, the High Court had examined the documents and on comparison of signatures thereof concluded that the documents were not false or fabricated. Thereafter, the High Court, in that case, held that the complaint to be vexatious, frivolous, and false on the basis of material produced by the respondents. The conclusion of the High Court was not to the effect that the allegations in the complaint, even if taken on their face value and accepted in their entirety did not prima facie constitute any offence. There was also no conclusion drawn by the High Court that the complaint did not disclose a cognizable offence. It was in fact situation of that case that the Hon'ble Supreme Court held that the quashing of FIR by the High Court was not justified. Suffice it to say, such is not the position in the instant case. On the contrary, a bare perusal of the contents of the First Information Report does not prima facie constitute any offence even if the allegations, made therein, are taken on their face value and accepted in its entirety. 14. The aforesaid view of mine find support in the principles laid down by the Apex Court in the case of K.L.E. Society (supra), wherein it has been observed, in para 8, that “When no offence is disclosed by the complainant, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the material to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.” Further, it held in para 11 that, “If the allegations set out in the complaint 9. do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code.” 15. In the case of Avad Dan (supra), it had been observed by a Co-ordinate Bench of this Court that, “The allegations are only that the petitioner Avad Dan tried to remove the fence from the plot of the complainant and tried to construct his house in the plot of the complainant, but there is no allegation that he in fact encroached upon any of the land of the complainant.” In the instant case, there is no allegation of encroaching or trying to construct a house in the plot of the complainant. The only allegation made in the report is that an existing window had been converted into a door by the accused- petitioner. In my considered opinion, the allegations in the report do not at all constitute the offence of criminal trespass, much less to say, under Section 447 IPC, as alleged by the non- petitioner. 16. From the aforesaid discussion, I am of the considered view that the allegations made in the impugned First Information Report does not disclose the commission of the offence alleged. Therefore, it would be just and proper to exercise the inherent powers vested in this Court for quashing of the impugned report. The Hon'ble Supreme Court has laid down that while exercising the inherent jurisdiction, the High Court should not hesitate to 10. exercise its powers in appropriate cases. It has been observed in the case of R. Kalyani vs. Janak C. Mehta & Ors., (2009) 1 SCC 516 that “One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.” 13. Consequently, this criminal miscellaneous petition is allowed and the impugned First Information Report No. 63/2008, registered at Police Station Mahesh Nagar, Jaipur City (South), Jaipur and the proceeding in furtherance thereof, are hereby quashed. (RAGHUVENDRA S. RATHORE),J. tikam/-Jr.P.A. Item no.s-1