IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 Crl.Rev.Pet.No. 833 of 2009() ----------------------------- CMP.6428/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR .................... REVN. PETITIONER(S): COMPLAINANT -------------------------------- ALI ASKAR, AGED 35 YEARS, S/O.AHAMMEDKUTTY, ERANHIKKAL HOUSE, THALAKKAD AMSOM AND DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): STATE -------------------- STATE, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.833 of 2009 -------------------------------------- Dated this the 25th day of May, 2009. ORDER Heard counsel of petitioner and the Public Prosecutor. 2. Challenge in this revision is to the dismissal of the private complaint for offences punishable under Sections 341, 454 and 380 read with Section 34 of the Indian Penal Code (for short, “the Code”), under Section 203 of the Code of Criminal Procedure. 3. Case of petitioner/complainant is that himself and family were staying in the house purchased by him in the name of his wife as per document No.1285 of 2001 and while so he entered into an agreement with one Khader on 24.9.2008 for sale of the said property and another item of land. Petitioner and family shifted residence from the said house to another house after locking the house which was agreed to be sold to Khader. On 10.8.2008 accused who are his brothers, their wives and children criminally trespassed into the house agreed to be sold, used the gas cylinder and firewood without his permission, restrained him from entering the house and thereby committed offences punishable under Sections 341, 454 and 380 read with Section 34 of the Code. Learned magistrate recorded the statement of the petitioner and one witness, took the view that what is involved is only a civil dispute and dismissed the complaint. Crl.R.P.No.833/2009 2 Learned counsel contended that at this stage it is premature to say that no offence is made out and the mere fact that the remedy is to file civil suit does not exclude the application of offences attributed to the accused. 4. I have gone through the records of the case and the sworn statement of petitioner as well as witness. One thing is clear from the statement of the complainant and witness that accused who are none other than petitioner's brothers and their wives had some claim over one item of land which the petitioner is said to have purchased from his father and which was also agreed to be sold to Khader and it is in the light of that claim they allegedly entered in the house in question. A learned Single Judge of this Court in N.Kesavan Nair & others v. State of Kerala and others (2005(2) KLJ 517) took the view that when a landlord to evict his tenant removed his articles, no offence under Section 380 of the Code is made out. Criminal trespass is defined in Section 441 of the Code as entery 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. It is pertinent to note that a bona fide claim of right however ill-founded it may be, is a good defence in an action for trespass. Learned magistrate has observed that it would appear that accused had claim over the property agreed to be sold by the petitioner. It is also seen from the statement of the petitioner that his attempt was to get the accused Crl.R.P.No.833/2009 3 evicted from the house in question. Learned magistrate was not satisfied that there is sufficient ground to proceed in the matter. I am not persuaded to think that it is a fit case the revisional court should interfere. Revision petition is dismissed. THOMAS P.JOSEPH, Judge. cks