Kailash Sinha vs The State Of Jharkhand
2021 Latest Caselaw 3875 Jhar

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          Cr. Revision No. 1354 of 2016

Kailash Sinha, s/o Late Jagarnath Sinha, r/o Quarter No.A-8, PO & PS-
Dhansar, District-Dhanbad                                  .... . Petitioner
                                    Versus
1. The State of Jharkhand
2. M/s Jharia Firebricks Pvt. Ltd., At & PO & PS-Dhansar, District-Dhanbad
                                                     ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

For the Petitioner : Mr. S.K. Laik, Advocate For O.P. No.2 : Mr. Vibhor Mayank, Advocate

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Order No. 10 /Dated: 18th October, 2021

C.P. Case No.974 of 2010 was instituted by M/s Jharia Firebricks Pvt. Ltd. alleging that Kailash Sinha who occupied Company's Quarter No.A-8 without permission of the Company and continued in possession of the said house committed the offence punishable under section 448 of the Indian Penal Code.

2. By a judgment dated 14th September, 2015 passed in C.P. Case No.974 of 2010 corresponding to T.R No.1441 of 2015, the learned Judicial Magistrate, 1st Class, Dhanbad convicted Kailash Sinha and by an order of same day sentenced him to undergo SI for nine months under section 448 of the Indian Penal Code and further directed him to vacate the premises in question within three months.

3. The learned Judicial Magistrate, 1st Class, Dhanbad has appreciated the evidences laid by the complainant in the following manner:

"....... It appears from the record that complainant Ajay Agrawalla is one of the director of the company. He authorized by the company for filing case. Exhibit-1 proved that a notice was sent by the company through advocate to the accused person on 06 December, 2004. Exhibit-9 is also proved that the same things. According to exhibit-9/1 notice was refused by the accused person on 11.12.04. After that legal notice has been sent by the company to accused person through his advocate which is proved by exhibit-2, 3 and 4, but accused neither vacated the premises nor replied the legal notice. Exhibit-6 i.e. registered sale deed proved that plot number 203 and 204 are belonging to the company. As per the exhibit 8/4, Qr. No.A/8 was not

allotted to the accused and he occupied as out sider. According to government receipt i.e. exhibit-10, its proved that company is being paid rent receipt of company premises to the company. Exhibit-11, 11/1, 11/2 proved that company is being paid holding tax to the municipal corporation regularly. According to documents exhibited by the defence i.e. exhibit A, B, C and D, there is not mentioned the quarter number or plot number of the land. Further exhibit-A (supplementary) i.e. notice of court of the estate officer, Kusunda area, Dhanbad, proved that the said court had been issued a notice to the accused with regard to vacate the said property. It is established that the question of premises is related to Jharia Firebricks Pvt. Ltd. and it is house of the company. According to the evidence adduced by the complainant as well as documents, company is owner of the said house and accused enter into the company quarter illegally. Accused could not to prove his bona fide possession and ownership at the quarter number A/8. Accused also not produced any documents in support of his favour, which shows, accused is legally occupied the premises of company. Accused has taken plea that the said residence is one of the B.C.C.L. house, but he has not produced any documents with reference to the said version. Due to his unlawful entrance, company has intimidated insulted and annoyed. Exhibit-8/4 i.e. quarter list of the company, proved that accused Kailash Sinha has been residing from long time. After, enter into the company quarter accused remain stayed till today. Company was using that quarter for residence of his employee. Therefore, complainant has been able to prove its case beyond the shadow of reasonable doubts."

4. The appeal preferred by the convict vide Criminal Appeal No. 180 of 2015 was dismissed by a judgment dated 9th September, 2016.

5. The learned appellate Court has held as under:

"13. Now, having borne in mind the respective arguments advanced on behalf of appellant and upon going through the respective case laws as discussed supra, now, coming to the facts of the present case and relying upon the argument of ld. Counsel of appellant, as per his own admission the quarter in question was not allotted to the appellant, rather it was allotted to his brother, thus the intention on the part of the accused (Appellant) is apparent while he denied the circumstances brought to his notice during statement U/s 313 of Cr.P.C. During trial and he totally denied regarding occupation of the quarter but in defence submitting documents showing electricity connection etc. in his name. Thus, the dominant intention to intimidate insult and annoy are apparent on the part of the Appellant (Accused) and the offence U/s 448 of I.P.C. is continuing offence. In the fact of present case, the case laws relied upon by the ld. Counsel appearing on behalf of Appellant is not applicable. Thus, there is clear cut evidence to prove the guilt of the accused U/s 448 of I.P.C. and sentencing him to undergo S.I. for nine (9) months, and thus the order passed by the Ld. Lower court U/s 456 of Cr.P.C. is also

appropriate. Accordingly, the present Criminal Appeal is devoid of any merit and thus, the same is hereby dismissed."

6. The convict is before this Court by filing criminal revision petition under section 397 read with section 401 of the Code of Criminal Procedure.

7. At the outset it would be apposite to indicate that the powers under section 397 of the Code of Criminal Procedure can be exercised to examine the correctness, legality or propriety of any finding, sentence or order, and as to the regularity of any proceeding of an inferior Court, but minute examination of the evidences laid by the parties is not permissible under revisional jurisdiction - it is not every error of law which may invite exercise of the powers under section 397 of the Code of Criminal Procedure by the revisional Court.

8. In "Sheonandan Paswan v. State of Bihar" (1987) 1 SCC 288 the Hon'ble Supreme Court has observed as under:

"88.... Section 397 gives the High Court or the Sessions Judge jurisdiction to consider the correctness, legality or propriety of any finding, sentence or order and as to the regularity of the proceedings of any inferior court. While considering the legality, propriety or the correctness of a finding or a conclusion, normally, the revising court does not dwell at length upon the facts and evidence of the case. The court in revision considers the materials only to satisfy itself about the correctness, legality and propriety of the findings, sentence or order and refrains from substituting its own conclusion on an elaborate consideration of evidence."

9. The complainant-M/s Jharia Firebricks Pvt. Ltd. produced two witnesses CW1 Ajay Agrawalla who claimed to be authorised representative of the Company, duly authorised by its Board of Directors. Another witness CW2 Ranjan Kumar Sinha was also an employee of the Company and he claimed in the Court that he knew both the parties. The case set up by the complainant is that Quarter No. A-8 was allotted to Jai Prakash Sinha, an employee of the Company, who suffered a direction of the Court to vacate the said house. Kailash Sinha is the brother of Jai Prakash Sinha who illegally occupied Quarter No. A-8 and inspite of notices issued to him to vacate the house remained in illegal possession of the said house. Various documents such as notices, legal notice, registry receipt and acknowledgment were produced by the complainant in the trial of

T.R No.1441 of 2015 to show that proper notice was served upon the accused asking him to vacate the Company's quarter. It appears that a quarter list and the envelope containing the notice were also produced by the complainant. In order to show that Quarter No.A-8 belonged to M/s Jharia Firebricks Pvt. Ltd. some documents, such as, land receipts and holding tax receipts were also laid in evidence by the complainant. These documents were proved through CW1 and CW2.

10. The further case of the complainant was that the envelope containing legal notice dated 6th December, 2004 sent to the accused was opened and he refused to receive the same and thereafter the envelope was returned back.

11. CW1 admitted in the Court that no notice was sent to Jai Prakash Sinha in the years 2004, 2005, 2006, 2007 and 2008; no document was produced to establish that Jai Prakash Sinha was an employee of M/s Jharia Firebricks Pvt. Ltd.; how the quarter list was prepared which did not bear the Company's letter number was not shown; the quarter list was prepared by Kirani Ray and Dewaki Singh but they were not examined; no document was produced to establish that Basudeo Agarwalla and Anand Agarwalla were Directors of the Company or that Kirani Ray and Dewaki Singh were employees of the Company.

12. Section 27 of the General Clauses Act, 1897 reads as under:

"Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expression "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

13. I find that service of notice upon the accused was not proved during the trial. A presumption about valid service of notice under section 27 of the General Clauses Act could not have been raised in this case. Exhibits 1, 2, 3, 4 and 9 which are copies of notices, legal notice, registry receipt and acknowledgment were marked during the trial with objection, but, in the judgment of both the Courts below there is no discussion in this regard. As

noticed above, two witnesses were examined by the complainant but neither the postal peon nor any other independent witness who was a neighbour of the accused was produced during the trial to establish that the accused refused to receive legal notice dated 6th December, 2004.

14. In a criminal trial, burden to prove the charge is always on the prosecution and except in very exceptional class of cases - one of the illustrations is engrafted in section 106 of the Evidence Act - the burden never shifts on the accused.

15. In "Shambhu Nath Mehra v. The State of Ajmer" AIR 1956 SC 404 the Hon'ble Supreme Court has observed that section 106 of the Evidence Act cannot be used to undermine the well-established rule of law that, save in a very exceptional class of cases, the burden is on the prosecution and never shifts.

16. The charge against the petitioner is of house trespass which is defined under section 441 of the Indian Penal Code. To buttress his contention that the petitioner was causing annoyance as contemplated under section 448 of the Indian Penal Code, Mr. Vibhor Mayank, the learned counsel for the opposite party no.2 has relied on a judgment in "Rash Behari Chatterjee v. Fagu Shaw" (1969) 2 SCC 216. The learned counsel would submit that insistence of the petitioner and his continued illegal possession of the Company's quarter, inspite of two notices issued to him, is a clear proof of the fact that he remained in possession of Quarter No.A-8 to cause annoyance to the lawful owner and while so he committed the offence punishable under section 448 of the Indian Penal Code.

17. Section 441 of the Indian Penal Code reads as under:

"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"."

18. In the first place, it needs to be indicated that to constitute the offence under section 441 of the Indian Penal Code it must be proved that entering into or upon the property in possession of another was with "intent" to commit an offence or to intimidate, insult or annoy any person in possession

of such property. In whole of the complaint there is not even a whisper that the accused with such intention entered upon Quarter No.A-8, rather CW1 who claimed to be authorised representative of M/s Jharia Firebricks Pvt. Ltd. admitted in the Court that he did not remember the date of trespass. It is the case pleaded by the complainant that the Company remained closed between 1975 to 1982 and there is no material on record to show when Jai Prakash Sinha superannuated from service. Most importantly, it is not proved that he was an employee of the Company. There are documents filed by the complainant to establish that the land comprised under Plot Nos.203 and 204 in village-Bawan situated in Municipal Holding Ward No.18 was registered in the name of M/s Jharia Firebricks Pvt. Ltd. but at the same time CW1 admitted in the Court that M/s BCCL has filed an eviction suit against M/s Jharia Firebricks Pvt. Ltd. What was the nature of dispute and what is the outcome of eviction suit have not been brought on record. The judgment in "Rash Behari Chatterjee" was delivered in the facts of the case, as would appear from paragraph no.4 of the reported judgment which specifically records that "on the facts of this case". In paragraph no.3 of the said judgment the history of litigation is recorded by the Hon'ble Supreme Court which would further indicate that inspite of a decree of ejection the defendant did not vacate the premises till he lost upto the High Court. It further transpires that initially he had resisted and refused to give possession when Nazir of Serampur Civil Court had gone there.

19. Mr. S.K. Laik, the learned counsel for the petitioner has referred to a judgment in "Kanwal Sood v. Nawal Kishore" AIR 1983 SC 159 to submit that it was a purely civil dispute and no offence punishable under section 448 of the Indian Penal Code was committed by the petitioner.

20. Having examined the materials on record, particularly, in view of the fact that the complainant failed to prove that the accused entered upon Company's Quarter No.A-8 with an intent to commit an offence or to intimidate or cause insult or annoyance, I hold that both the Courts below committed serious errors in law in holding the accused guilty under section 448 of the Indian Penal Code.

21. In the result, the judgment passed in Criminal Appeal No.180 of 2015 is set-aside. Consequently, conviction and sentence passed against the

petitioner as recorded in T.R. No.1441 of 2015 are set-aside.

22. Criminal Revision No.1354 of 2016 is allowed.

23. It is stated that during pendency of this criminal revision petition, in compliance of the order dated 13th December, 2019 passed by this Court, the petitioner has vacated Quarter No.A-8. Therefore, it is necessary to indicate that such vacation of Quarter No.A-8 situated at Dhansar, Dhanbad by the petitioner shall not be construed as admission on his part as regards ownership of M/s Jharia Firebricks Pvt. Ltd. over the said quarter.

24. Let a copy of the judgment be transmitted to the Court concerned through 'Fax'.

25. Let the lower Court records be sent to the Court concerned forthwith.

(Shree Chandrashekhar, J.) sudhir