Smt. Roopa Gupta vs State Of U.P. And Anr.
2014 Latest Caselaw 8693 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 
Criminal Misc. Writ Petition No. 10547 of 2012
 

 
Smt. Roopa Gupta
 

 
Vs.
 

 
State of U.P. and another
 

 
Hon. Om Prakash, VII, J.

The present writ petition under Article 226 of the Constitution of India has been filed with the prayer to issue a writ, order or direction in the nature of certiorari quashing the order dated 16.11.2010 passed in complaint case no. 4199 of 2010 under Sections 447, 504, 506 Ipc, Police Station Mandi, District - Saharanpur passed by Additional Chief Judicial Magistrate, IV, Saharanpur and further to quash the order dated 22.6.2012 passed by the Additional District & Sessions Judge, Court No.10, Saharanpur in Criminal Revision No. 32 of 2012 (Smt. Roopa Gupta vs. State and another).

Brief facts giving rise to the present case are that the aforesaid complaint was filed by the opposite party no.2 before the Additional Chief Judicial Magistrate IV, Saharanpur with the averments that he was the owner of house no. 6/1744, Gyan Vihar Colony, near Tota Chowk, Saharanpur. Since his father was ill, therefore he had to live with his father in his parental house. The petitioner was well-known to him therefore, on her request, she was permitted to live in the house in question for a period of three months. She had stated that she will be purchasing a house at Bhuteshwar Road and after the expiry of three months, she will shift in that house. Believing on her version, she was permitted to live in the house in question. When after the expiry of the aforesaid period of three months, she did not vacate the house in question, the respondent no.2 told her to vacate the same but she did not vacate on one or the other pretext. When the respondent no.2 felt that petitioner was trying to occupy the house in question, he sent a notice to the petitioner to vacate the same terminating the permission given to her but she did not vacate the house. On 17.7.2010 the respondent no.2 went to his house and asked the petitioner to vacate the house in question but she abused him and also gave threats to kill him.

On the basis of the above complaint, the Magistrate concerned recorded statements under Sections 200 and 202 Cr.P.C. and after hearing the complainant, by the order dated 16.11.2010 summoned the petitioner to face the trial for the offences under Sections 447, 504 and 506 IPC.

Against the said order, the petitioner filed a revision before the Sessions Judge. The Additional District & Sessions Judge, Court no.1, Saharanpur after hearing the parties dismissed the revision affirming the order passed by the Magistrate concerned. Hence the present writ petition.

I have heard Shri Chetan Chatterjee, learned counsel for the petitioner, Shri A.K.S. Bais, learned counsel for the respondent no.2 and the learned AGA for the State and perused the entire record.

It is submitted by the learned counsel for the petitioner that no offence, as mentioned in the summoning order, is made out against the petitioner. The opposite party no.2 himself permitted the petitioner to live in the house in question and he also agreed to sell the said house to the petitioner for which certain consideration amount has also been accepted by him and the complaint was lodged to harass the petitioner to extract more money from the petitioner. It is further submitted that the matter is purely civil in nature and the complaint filed by the opposite party no.2 was not maintainable but the courts below have illegally entertained the same and summoned the petitioner. He placed reliance on a decision of Supreme Court in Smt. Kanwal Sood vs. Nawal Kishore and another, AIR 1983 SC 159 = 1983 Cri. L.J. 173.

In reply, Shri A.K.S. Bais, learned counsel for the opposite party no.2 has submitted that all ingredients to constitute an offence of criminal trespass is made out. The witnesses have supported the complaint in the statements under Sections 200 and 202 Cr.P.C.. A prima-facie case clearly made out against the petitioner. It is further submitted that only on the basis that civil remedy is available, criminal prosecution is not barred.

Before proceeding to discuss the submissions made by the learned counsel for the parties, it is necessary to quote Section 441 I.P.C, which is as under:

"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".

If the facts of the present matter are compared with the essential ingredients required to constitute offence of criminal trespass, then from the provisions of Section 441 I.P.C, quoted above, it is evident that the petitioner entered into the house in question with the permission of the opposite party no.2 for a certain period but after expiry of that period, she did not vacate the house in question and when the opposite party no.2 asked the petitioner to vacate the building, she not only refused to do so but also abused and threatened to kill him. These facts find support with the statements recorded under Section 200 and 202 Cr.P.C..

The provisions enumerated in second part of Section 441 I.P.C. clearly attract in the present matter because initially the petitioner entered in the house in question in lawful manner but subsequently, she insisted to remain in possession unlawfully.

The High Court, in exercise of its writ jurisdiction must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/ complainant without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law.

So far as the submission of the learned counsel for the petitioner that the matter is purely of civil nature and the criminal prosecution cannot go-on is concerned, it is well settled that if a prima-facie case for commission of an offence under IPC or under other related provisions of the Penal Laws is made out from the allegations contained in a complaint under Section 200 Cr.P.C., or a charge- sheet submitted under Section 173 Cr.P.C., the High Court would refrain from invoking its inherent powers under Section 482 of Cr.P.C. or the constitutional jurisdiction under Article 226 of the Constitution and shall not set at naught such criminal prosecution only because the allegations against the accused persons have emanated from an agreement of civil nature. Further, in Indian Oil Corporation vs. NEPC India Limited and others, (2006) 6 SCC 736, the Supreme Court has held that even if the dispute has arisen from breach of contract for which a civil remedy was available and availed of, the remedy under criminal law was not barred if the allegations were of a criminal offence. It was categorically held that even in the case of breach of contract, a criminal complaint was maintainable save as the offence alleged in the complaint is prima-facie made out.

At the stage of passing the summoning order, the court dealing with the matter is only required to see the prima-facie case. On a perusal of the entire record of the present case, it cannot be said that no prima-facie case was made out against the petitioner.

Further, the arguments advanced by the learned counsel for the petitioner are also not acceptable as the questions raised by him in the present writ petition would require leading of oral and documentary evidence. Such exercise cannot appropriately be done in Writ Petition under Article 226 of the Constitution of India.

So far as the decision in the case of Smt. Kanwal Sood (supra), is concerned, the same is not helpful to the petitioner and is distinguishable with the facts of the present case.

In view of the aforesaid discussions, this court is of the view that there is no illegality, irregularity, impropriety or miscarriage of justice in the impugned orders. The writ petition lacks merits and is liable to be dismissed.

The writ petition is accordingly dismissed.

Dated :17.11.2014

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