# Pawan Kumar v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 253
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-27
- **Case number:** Criminal Misc. Writ Petition No. 21811 of 2019
- **Bench:** Manoj Misra, Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-kumar-v-state-of-u-p-ors-45039
- **Pages:** 4

## Headnote

A. Indian Penal Code, 1860 - Sections 441
& 447 - Criminal Trespass - Section 441
IPC is in two parts - term "such property"
occurring
in
second
part
refers
to
"property in the possession of another" -
Applicability of second part - second part
become applicable - when a person
enters into - 'property in the possession
of another person' - S. 441 not applicable
where a person is in possession of his
own property as an owner or where he
does not retain possession or maintain
use of the 'property of another.' (Para 12)

Allegation petitioner unauthorizedly raising
constructions and developing colony over plot
without prior sanction - Admittedly in the
revenue records plot recorded in the name of
petitioner in the capacity of Director of
Company - Held - petitioner is the owner & in
possession of plot, he has not entered into or
upon property in possession of another person
- even if the petitioner raises constructions,
which may be unauthorized, he would not be
liable for an offence of criminal trespass
punishable under section 447 I.P.C. (Para 13)

Crl. Misc. Writ Petition allowed. (E-5)

## Text

1 All. Pawan Kumar Vs. State of U.P. & Ors.
253
complaint that Police or Investigating
Officer has committed violation of any
provision pertaining to arrest of any person
or the petitioners themselves. The main
relief in the writ petition is for quashing of
first information report which, admittedly
having
disclosed
commission
of
cognizable offence is not liable to be
interfered with at this stage.

23. In view of above, no interference
is called for.

24. The writ petition is dismissed.
----------
(2020)1ILR253

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.11.2019

BEFORE
THE HON'BLE MANOJ MISRA, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Misc. Writ Petition No. 21811 of 2019

Pawan Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Uma Nath Pandey

Counsel for the Respondents:
A.G.A.

A. Indian Penal Code, 1860 - Sections 441
& 447 - Criminal Trespass - Section 441
IPC is in two parts - term "such property"
occurring
in
second
part
refers
to
"property in the possession of another" -
Applicability of second part - second part
become applicable - when a person
enters into - 'property in the possession
of another person' - S. 441 not applicable
where a person is in possession of his
own property as an owner or where he
does not retain possession or maintain
use of the 'property of another.' (Para 12)

Allegation petitioner unauthorizedly raising
constructions and developing colony over plot
without prior sanction - Admittedly in the
revenue records plot recorded in the name of
petitioner in the capacity of Director of
Company - Held - petitioner is the owner & in
possession of plot, he has not entered into or
upon property in possession of another person
- even if the petitioner raises constructions,
which may be unauthorized, he would not be
liable for an offence of criminal trespass
punishable under section 447 I.P.C. (Para 13)

Crl. Misc. Writ Petition allowed. (E-5)

(Delivered by Hon'ble Manoj Misra, J. &
Hon'ble Virendra Kumar Srivastava, J.)

1. Heard learned counsel for the
petitioner; learned A.G.A. for the respondents
1 and 2; and perused the record.

2. The instant petition seeks quashing
of the first information report (for short
F.I.R.) dated 20.07.2019 registered as Case
Crime No.847 of 2019 at P.S. Surajpur,
District Gautam Budh Nagar, under
section 447 IPC.

3. The impugned FIR has been
lodged by an officer of the Greater Noida
Industrial
Development
Authority,
Gautambudh
Nagar
(for
short
the
Authority) by alleging that the petitioner is
unauthorizedly raising constructions and
developing colony over plot No.918 at
village Tilpata, which falls within the
notified area of the Authority, without
obtaining
prior
sanction
for
such
development.

4. The petitioner has challenged the
impugned FIR on two grounds: (a) that the
petitioner was developing his own land
254 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore no offence of criminal trespass is
made out; and (b) that no notice as
contemplated by section 441 IPC as
applicable in the State of UP was served
before lodging the FIR. It has been
pleaded that, admittedly, in the revenue
records plot no.918 is recorded in the
name of Radhika Green Homes Pvt. Ltd.
whose Director is the petitioner - Pawan
Kumar (the accused) therefore no offence
punishable under section 447 IPC is made
out. In support thereof Khatauni extract of
1421-1426 F has been annexed as
Annexure 2 to the petition.

5. On 24.09.2019, following order
was passed:-

"Heard learned counsel for the
petitioner and Sri S.R. Pandey, learned
AGA.

It
is
submitted
by
learned
counsel for the petitioner on the strength
of the averments made in paragraphs 13
and 14 of the writ petition that lodging of
the impugned FIR was not preceeded by
any statutory notice as contemplated
under Section 441 IPC (Amended by the
State).

Sri S.R. Pandey, the learned
AGA seeks time to obtain instructions in
the matter.

Put up as fresh on 17.10.2019.

Till then no coercive measure
shall be taken against the petitioner in
case crime No. 847 of 2019 under Section
447 IPC at P.S. Surajpur, District Gautam
Buddh Nagar.

Copy of the order be provided to
Sri S.R. Pandey, the learned AGA,
forthwith.

Sri S.R. Pandey learned AGA for
the State also undertakes to intimate about
this order to the learned counsel for the
NOIDA Development Authority, in writing,
within three days who in turn shall also
obtain instructions in the matter."

6. Pursuant to the above order, a
short counter affidavit has been filed. In
the counter affidavit it has been pleaded
that the Authority in exercise of power
under Section 10 of the U.P. Industrial
Areas Development Act, 1976 has already
issued a notice on 03.07.2019 (Annexure
CA-1) seeking removal of unauthorized
constructions, which can be treated as a
notice contemplated by section 441 IPC,
and since the petitioner has not acted upon
the notice within the time specified in the
notice, the FIR is maintainable.

7. Learned A.G.A. pointed out that
the notice dated 03.07.2019 clearly spell
out that the accused must remove the
constructions and restore the land to its
original state. He also urged that the
amended provisions of section 441 I.P.C.,
as applicable in the State of Uttar Pradesh,
make unauthorized use of property also an
offence, if such unauthorized usage is not
stopped despite notice. He submitted that
since notice was sent to remove the
unauthorized constructions and to restore
the land to its original state, regardless of
the fact that the petitioner is the owner of
Plot No. 918, since constructions have
been
raised
unauthorizedly,
offence
punishable under Section 447 I.P.C is
made out from a bare perusal of the
impugned FIR.

8. Learned counsel for the petitioner
submitted that since it has not been
disputed that plot No.918 is owned and
possessed by the petitioner in the capacity
of Director of the Company whose name is
recorded in the revenue records, the
offence punishable under section 447 IPC
is not made out even if the constructions
1 All. Pawan Kumar Vs. State of U.P. & Ors.
255
are illegal. Hence, the impugned FIR is
liable to be quashed.

9. We have considered the rival
submissions and have perused the record
carefully.

10. Section 447 IPC provides that
whoever commits criminal trespass shall
be punished with imprisonment of either
description for a term which may extend to
three months, or with fine which may
extend to five hundred rupees, or with
both. Section 441 IPC, as applicable in the
State of Uttar Pradesh, vide U.P. Act
No.31 of 1961, defines criminal trespass as
follows:-

"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 Laws
(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."

(Emphasis Supplied)

11. A bare perusal of the provisions
of section 441 IPC would reveal that it is
in two parts. The first part relates to a
person who enters into or upon property in
possession of another with an 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 an
intent to commit an offence. The second
part relates to a person who has entered
into or upon such property, whether before
or after the coming into force of the
Criminal Laws (U.P. Amendment) Act,
1961, with the intention of taking
unauthorized
possession
or
making
unauthorized 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.

12. In both parts of section 441 IPC,
the use of the words "such property" is of
extreme
significance
and
when
the
provision is read as a whole, one would
find that the term "such property" refers to
that what is described in the opening part,
that is "property in the possession of
another". The above interpretation gets
strength from the use of the phrase "that
another person" while describing the
person competent to give notice to
withdraw from such property or its
possession or use. Thus, in our considered
view, the second part would become
applicable where a person having entered
into a property in the possession of another
person with the intention of taking
unauthorized
possession
or
making
unauthorized use of such property fails to
withdraw from such property, or its
256 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

13. In the instant case, the offence of
criminal trespass as defined in the first part
of section 441 I.P.C. is not made out
because admittedly the petitioner has not
entered into or upon property of another
person but is in possession of his own
property as an owner thereof. Likewise, no
offence would be made out under the
second part because the petitioner does not
retain possession or maintain use of the
property of another. Indisputably, the
petitioner is the owner and in possession
of Plot No. 918. He has not entered into or
upon property in possession of another
person. Under the circumstances, even if
the petitioner raises constructions, which
may be unauthorized, he would not be
liable for an offence of criminal trespass
punishable under section 447 I.P.C.

14. It may be noticed that the land
pertaining to plot no.918 in the revenue
records is recorded in the name of Radhika
Green Homes Pvt. Ltd. whose Director is
the petitioner. Otherwise also, it is not the
case of the informant that plot No.918 is
the land of the Authority unlawfully
occupied or possessed by the accused.
Under the circumstances, the essential
ingredients of an offence punishable under
section 447 IPC are not made out.

15. Consequently, the writ petition is
allowed. The impugned first information
report is quashed. The quashing of the first
information
report
shall
be
without
prejudice to the rights of Greater Noida
Industrial Development Authority to take
recourse to such measures or such
proceedings against the petitioner in
respect
of
alleged
unauthorized
constructions raised by him, as the law
may permit. There is no order as to costs.
----------
(2020)1ILR 256

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.01.2020

BEFORE
THE HON'BLE RAJNISH KUMAR, J.

First Appeal From Order No. 74 of 2007

U.P.S.R.T.C. Lucknow ...Appellant
Versus
Mohd. Kasim Faruki & Ors. ...Respondents

Counsel for the Appellant:
Prabhakar Tewari, Akhter Abbas, J.B.
Singh

Counsel for the Respondents:
Mohd. Airaj Siddiqui, Pradeep Kumar Singh

A. Motor Accident Act, 1988 - Civil
Procedure Code - Order 41 Rule 33 -
Enhancement of compensation - Plea of
enhancement by claimant in appeal of
owner - No appeal or cross objection for
enhancement of compensation - Appeal
filed by owner challenging only the
findings of the Tribunal recorded in
regard to the accident - The appellant
cannot be put to a loss by dismissing the
appeal and enhancing the compensation
which would amount to put a premium on
non-action of the claimant-respondents
when they were satisfied with the award
passed by the Tribunal. (Para 14)

B. Constitution of India - Article 142 -
Exercise of power - Distinction between
power of Supreme Court and High Court -
In case of Jitendra Khimshankar Trivedi,
Apex court enhanced the compensation
exercising the jurisdiction under Article
142 of the Constitution of India which
cannot be done by this court - Power to
do complete justice is conferred on Apex