Allahabad High Court
Vishram Singh Yadav @ Vishram Singh vs State Of U.P. Thru. Prin. Secy. Home Lko on 1 October, 2024
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:68198
Court No. - 13
Case :- APPLICATION U/S 482 No. - 8905 of 2024
Applicant :- Vishram Singh Yadav @ Vishram Singh
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko
Counsel for Applicant :- Sumit Chauhan,Vishnu Narayan Sharma
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Lavania,J.
1. Heard learned counsel for the applicant as well as learned A.G.A. for the State.
2. The present applicant has been filed by the applicant with following main relief(s):-
"The petitioner named above most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the charge sheet dated 26.03.2019 as well as summoning order dated 30.06.2020 vide Case No.6534/2020 (State Vs. Vishram Singh Yadav @ Vishram Singh) arising out of Crime No.049/2020, under Section 447 of I.P.C., registered at Police Station - Motipur, District Bahraich and entire proceeding till the disposal of present petition."
3. Submission of the learned counsel for the applicant is that proceeding of the aforesaid criminal case is not maintainable. Cognizance taken on the charge sheet submitted in the matter is illegal. Referring to the State of Uttar Pradesh Amendment of Section 441 IPC, it is further submitted that no notice was issued to the applicant prior to lodging of F.I.R. hence on this score also proceeding of the aforesaid criminal case is an abuse of the process of law. In support of his contentions, learned counsel for the applicant has placed reliance on the judgment of this Court in the case of Rahtu Lal @ Rahtu Ram @ Divyanand and others Vs. State of U.P. and another decided on 25.3.2005, Somnath Paul vs Ram Bharose 1991 CRILJ 2499, D.P. Titus vs L.W. Lyall 1981 CRILJ 68, State Of U.P. vs Raja Ram 1976 CRILJ 1222, S. Subramanium And Ors. vs State Of Uttar Pradesh 1996 CRILJ 929 and Dr. Pradeep Kumar vs State Of U.P. And Another, 2024:AHC:12955 passed in Application U/S 482 No. - 41999 of 2019.
4. It is further stated that the basis of FIR is the report of Lekhpal, according to which the applicant was an encroacher over the Gaon Sabha land recorded as 'khaliyan', but the same has also not been found correct as would appear from the order of the Assistant Collector (Class I)/Tehsildar, Mihinpurwa (Motipur), District Bahraich dated 01.05.2024, passed in the proceeding of Section 67 of the U.P. Land Revenue Code, 2006, whereby the notice issued to the applicant in RC Form 20 has been recalled.
5. On the other hand, learned A.G.A. opposes the prayer.
6. Considered the aforesaid and perused the records.
7. In this matter charge sheet has been submitted for the offence under Section 447 IPC, cognizance has been taken and trial was started without considering the effect of State of Uttar Pradesh Amendment in Section 441 IPC.
8. For proper appreciation of submissions raised by the learned counsel for the parties, it will be useful to quote the provision of Section 441 IPC, which is as under.
"441. Criminal Trespass.- Whoever enters into or upon property in 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.
or, having entered into or upon such property, whether before or after the coming into force of the Criminal Law (U.P. Amendment) Act, 1961, with the intention of taking unauthorised possession or making unauthorised use of such property fails to withdraw from such property or its possession or use, when called upon to do so by that another person by notice in writing, duly served upon him, by the date specified in the notice, is said to commit "criminal trespass"." [Uttar Pradesh Act No. 31 of 1961, Sec. 2 (w.e.f. 13.11.1961).]"
9. If the legal requirement contained under Section 441 IPC as amended vide State of Uttar Pradesh Amendment is taken into consideration, it is clear that until and unless proper notice as required under 441 IPC is served upon the trespasser, criminal prosecution cannot be launched.
10. Since legal requirement as provided under Section 441 IPC for sending of notice to trespasser is not fulfilled, therefore, criminal prosecution started on the basis of charge sheet submitted in the matter is the abuse of the process of law.
11. In view of above, this Court finds that the case of the applicant is covered by the judgments passed in the case of Rahtu Lal @ Rahtu Ram @ Divyanand and others (Supra), Somnath Paul (supra), D.P. Titus (supra), State Of U.P. vs Raja Ram (supra), S. Subramanium And Ors. (supra) and Dr. Pradeep Kumar (supra).
12. Thus, the application is liable to be allowed and is accordingly allowed.
13. The entire proceedings arising out of Case Crime No. 049/2020, quoted above, are hereby quashed.
Order Date :- 1.10.2024
Anand/-
