Allahabad High Court
Salman @ Mohammad Gulam Husain And ... vs State Of U.P. Thru. Prin. Secy. Deptt. ... on 12 March, 2025
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:15489
Court No. - 12
Case :- APPLICATION U/S 482 No. - 2396 of 2025
Applicant :- Salman @ Mohammad Gulam Husain And Another
Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Home Lko. And Another
Counsel for Applicant :- Yogesh Kumar Mishra,Dharmendra Kumar Yadav
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Lavania,J.
Heard learned counsel for the applicants and learned A.G.A. for the State of U.P. as well as perused the record.
The present applicant has been filed by the applicants with following prayer:-
"Wherefore, it is most humble prayed that this Hon'ble Court this may kindly be pleased to quash the Criminal Case no. 3681/2024 State vs. Noor Mohammad and Another, U/S 447 IPC, along with charge sheet no. 01/2024, in Case Crime No. 0228/2024 lodged in Police Station- Kotwali Nagar, District- Sultanpur, including the summoning order dated 31.07.2024, passed by Chief Judicial Magistrate Room No 16, Sultanpur in Case Crime No. 0228/2024, U/S-447 IPC, State vs Noor Mohammad and Another, as for as it relates to petitioner as stated in Annexure No.2&3 charge sheet, summoning order."
Submission of the learned counsel for the applicants is that proceedings of the aforesaid criminal case are 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 applicants prior to lodging of F.I.R. hence on this score also proceedings of the aforesaid criminal case are an abuse of the process of law. In support of his contentions, learned counsel for the applicants has placed reliance on the judgment of this Court passed in the case of Rahtu Lal @ Rahtu Ram @ Divyanand and others Vs. State of U.P. and another decided on 25.3.2005.
On the other hand, learned A.G.A. opposes the prayer.
Considered the aforesaid and perused the record.
In this matter charge sheet has been submitted for the offence under Section 447, 427 IPC, cognizance has been taken and trial was started without considering the effect of State of Uttar Pradesh Amendment in Section 441 IPC.
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, o, 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).]
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.
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, as has been held by this Court in the case of Rahtu Lal @ Rahtu Ram @ Divyanand and others (Supra).
Thus, the instant application is allowed.
The entire proceedings arising out of Case Crime No.0228/2024, quoted above, are hereby quashed.
Order Date :- 12.3.2025
Arun/-
