1 IN THE HIGH COURT OF BOMBAY AT GOA. CRIMINAL WRIT PETITION NO. 80 OF 2010. 1. Mr Savio Fernandes, Major, aged about 45 years, Superintendent of Excise, At Gujarat, R/o Meghna Society Bopal, Ahmedabad, Gujarat. 2. Mrs. Elvira D'Sa, Major, aged about 60 years, Housewife, R/o St. Ann's Colony, Near St. Ann's Convent, Tivim, Bardez, Goa. 3. Mr. Kishore Raut, Major, aged about 40 years, Mechanic. 4. Mr. Sandeep Gadekar, Major, aged about 41 years, in service, Both R/o Ward No. 11, Feira Alta, Behind Mapusa Garage, Mapusa, Bardez, Goa. … Petitioners V/s 1. Mr. Dinesh Assotikar, Major, in Service, R/o H.No. 207, Duler, Behind Mapusa Garage, 2 Mapusa, Bardez, Goa. … Respondents. Mr. M. Sardessai, Advocate for the Petitioners. Mr. Ryan Menezes, Advocate for the Respondent. Coram : A. P. Lavande, J. Judgment Dated: 20.01.2011 ORAL JUDGMENT Heard Mr. M. Sardessai, learned Counsel for the Petitioners and Mr. Ryan Menezes, learned Counsel for the respondent. 2. Rule. By consent heard forthwith. 3. By this petition under Article 227 of the Constitution of India, read with 482 of Cr.P.C., the petitioners challenge the judgment and order dated 9.7.2010 passed by the Addl. Sessions Judge, Mapusa in Criminal Revision Application No. 105/2009 to the extent it confirms the order dated 2.9.2009 passed by the learned J.M.F.C., Mapusa in so far as it maintains the order passed by the Magistrate ordering framing of charge under Sections 323, 427 and 447 read with 34 of I.P.C. 3 4. The respondent filed Private Criminal Case No. 149/2002/A against the petitioners alleging commission of offences under Section 323, 427, 447, 504 and 506 (ii) read with Section 34 of I.P.C. The complainant examined two witnesses in support of his case. The learned Magistrate after holding inquiry, ordered framing of charge under Section 323, 427, 447, 504 and 506 (ii) read with Section 34 of I.P.C. The said order was challenged by filing Criminal Revision Application No. 105/2009 before the Court of Sessions at Panaji, which was made over to the Court of Addl. Sessions Judge at Mapusa. 5. The learned Addl. Sessions Judge, by impugned judgment and order dated 9.7.2010 partly allowed the revision application and set aside the order passed by the learned J.M.F.C. in so far as Sections 504 and 506 (ii) read with Section 34 of I.P.C are concerned. However, the Judge maintained the order in so far as framing of charge under Section 323, 427 and 447 read with Section 34 of I.P.C. is concerned. The petitioners have challenged the said order. 4 6. Mr. Sardessai, learned Counsel for the petitioners submitted that perusal of the complaint and the evidence of two witnesses examined by the complainant clearly discloses that no where the complainant has established that the petitioners/accused trespassed in the property of the complainant, admeasuring 1330 sq. metres. He further submitted that unless the complainant establishes that he was in possession of the property and that the accused entered upon the said property, the offence under Section 447 is not sustainable and as such, to that extent the learned Addl. Sessions Judge has committed an error in upholding the order passed by the learned Magistrate in so far as Section 447 read with Section 34 of I.P.C. is concerned. He further submitted that there is absolutely no evidence on record in so far as the offences under Section 323 and 427 read with Section 34 are concerned. 7. Mr. Ryan Menezes, learned counsel for the respondents has supported the impugned judgment and order. 8. Having perused minutely the evidence led by the complainant and his witnesses as well as the complaint filed by the respondent, I find that there is prima facie material against the 5 petitioners for framing charge under Section 323 and 427 read with Section 34 of I.P.C. However, in so far as offence under Section 447 read with Section 34 of I.P.C. is concerned, neither the complainant nor the evidence brought on record by the complainant establishes that the petitioners or any one of them entered the property in possession of the complainant. In order to sustain a charge under Section 447 of I.P.C., the complainant has to establish, prima facie, that the accused entered upon the property in possession of the complainant with intent to commit an offence or to intimidate or annoy any person in possession of the said property. Perusal of the complaint and the evidence led by the complainant discloses that the complainant has not established even prima facie the ingredients of the said offence. There is absolutely no material brought on record by the complainant to prove that the petitioners or any one of them entered into the property in possession of the complainant. However, as stated above, in so far as offences under Sections 323 and 427 of I.P.C. are concerned, there is sufficient material on record and in my considered opinion the learned Addl. Sessions Judge was justified in maintaining the order passed by the learned Magistrate in so far as framing of charge under said sections is concerned. 6 9. In view of the said discussion, the impugned judgment and order dated 9.7.2010 passed by the Addl. Sessions Judge in Criminal Revision Application No. 105/2009 is partly set aside. The Judgment and order in so far as it maintains the order of the Magistrate in so far as offence under Section 447 read with Section 34 of I.P.C. is concerned is quashed and set aside. Consequently, the order passed by the Magistrate framing charge under Section 447 read with 34 of I.P.C. against the petitioners is set aside. 10. Rule is made partly absolute in the aforesaid terms. 11. Writ Petition stands disposed of. A. P. LAVANDE, J. MF/-