Uttarakhand High Court
WPCRL/163/2023 on 31 January, 2023
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
31.01.2023
WPCRL No. 163 of 2023
Hon'ble Sharad Kumar Sharma, J.
Mr. Arvind Vashisth, Senior
Advocate, assisted by Mr. Hemant Singh
Mahra, Advocate, for the petitioner.
Mr. V.S. Rathore, AGA, for the State.
The precise fact of the present writ
petition; where the petitioner has put a
challenge to the First Information Report i.e.
FIR No. 6 of 2023 dated 07.01.2023, where
certain set of allegations pertaining to the
offences falling under Sections 431 and 447
of IPC, has been registered against him at
P.S. Prem Nagar, Dehradun.
The learned Senior Counsel for the
petitioner has argued the matter from the
prospective, that if the contents of the FIR
itself is taken into consideration, it relates to
that an action for demolition of the alleged
construction or the encroachment which has
been said to have been made in relation to
khasra Nos. 310, 290, 309, 262, in fact, the
demolition has already taken place in
pursuance to the order passed by the Sub
Divisional Magistrate on 02.01.2023.
The argument of the learned Senior
Counsel for the petitioner is, that once the
action of registration of the FIR, it already
refers to, that the demolition has already
taken place, as such, the allegations levelled
in the FIR will not fall within the domain of
offences contained under Sections 431 and
447 of the IPC.
The tenacity of argument of the
learned Senior Counsel for the petitioner is
that the provisions contained under Section
447 of IPC, if it is taken into consideration, it
deals with the provisions, as regards to the
levying of punishment for an act of criminal
trespass. For the purposes of elucidating his
argument, he refers to, that in order to bring
an offence within an ambit of Section 447,
as to be, an act of criminal trespass, the
definition of criminal trespass as it has been
provided under Section 441 become
relevant to be considered.
He submits, that owing to the UP
Amendment as it has been carried by Act
No. 31 of 1961, which was in vogue at the
time when State of Uttarakhand was
created and would continue to apply in view
of the provisions contained under Section
87/88 of the Reorganization Act. The
amended provisions as contained and made
applicable in the State of U.P., it provided
that the action for a criminal trespass, has
had to be taken when a person who is
alleged to have encroached upon a land is
called upon to do so by any other person by
"notice in writing" duly serve upon him by
the dates specified in the notice to appear in
order to fortify the fact as to whether the
actual criminal trespass has been made by
the applicant who has been noticed or not.
The learned Senior Counsel for the
petitioner argues that in that regard, he has
taken a specific pleading in para 22, to the
effect that no notice as contemplated under
the provisions contained under Section 441
of IPC, as made applicable in the State of
U.P. was ever issued to the present
petitioner.
He further submits that the
aforesaid contentions would itself stand
fortified that when the FIR was got
registered on 07.01.2023 and the FIR self
contains a fact that in compliance of the
directions issued by the SDM and the
consequential directions issued by the ADM
on 03.02.2022, when it refers to an act of
demolition which has already taken place, in
that eventuality, the offence complained of
will not fall to be under Section 447 of IPC,
since in the absence of there being a
criminal trespass and its determination
made after issuance of notice under Section
441 of IPC, no offence under Section 447
could be made out.
But, however, considering the
totality of the facts and the circumstances,
whether the petitioner was noticed, though
it has been pleaded that no notice had been
given to the petitioner is a fact which is
required to be ventured into during the
course of investigation. But apparently since
no offence could be said to have been made
out, as far as the offence under Section 447
of IPC is concerned, in the absence of there
being a prior notice, the writ petition would
stand disposed of with a direction that no
coercive action would be taken against the
present petitioner, subject to the condition
of compliance of the directives given by the
Hon'ble Apex Court in the judgment Arnesh
Kumar Vs. State of Bihar and Another, as
reported in 2014 (8) SCC 273.
Subject to the aforesaid, the
respondents are expected to comply with
the guidelines contained in para 9 and 11 of
the said judgment, prior to taking any
coercive action against the present
petitioner as against the action, which has
been contemplated to be taken in
pursuance to the FIR No. 6 of 2023 dated
07.01.2023.
Traditionally, our mother High Court
at Allahabad, the seniors normally do not
appear during vacations. The same tradition
is borrowed to be applied by this Court.
Since the matter despite of a caution
extended by this Court was sought to be
argued by the learned Senior Counsel, he is
directed to deposit a cost of Rs. 25,000/- in
the High Court Bar Association Advocate
Welfare Fund, to which he has candidly
accepted to deposit the same.
Owing to the aforesaid, the writ
petition stands disposed of subject to the
aforesaid observations.
(Sharad Kumar Sharma, J.)
Vacation Judge
31.01.2023
Mahinder/
