Kanwal Sood vs Nawal Kishore - 1982 Supreme(SC) 219

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1982 Supreme(SC) 219

SUPREME COURT OF INDIA
D.A. DESAI AND R.B. MISRA, JJ.
Smt. Kanwal Sood, Appellant
Versus
Nawal Kishore and another, Respondents.
Criminal Appeal No. 69 of 1981, D/- 26-11-1982.
Advocates appeared
Mr. Soli J. Sorabjee, Sr. Advocate, Mr. R. K. Jain, Mr. R. P. Singh and Mr. Natin Mohan Popli, Advocates with him, for Appellant; Mr. P. R. Mridul, Sr. Advocate, M/s Praveen Kumar, A. K. Sharma and Dalveer Bhandari, Advocates with him, for Respondents.

Advocates:
A.K.SHARMA, DALVIR BHANDARI, Natin Mohan Popli, P.R.MRIDUL, PRAVIN KUMAR, R.K.JAIN, R.P.SINGH PAL, SOLI J.SORABJI

Headnote:(i) Indian Penal Code, 1860-Section 441(as amended by U. P. Act 31 of 1961)- Criminal Trespass-Appellant allowed to occupy the premises by owner A. C. Sood when alive -A.C. Sood gifting premises to a Sangh keeping right of possessions during his life time-A. C. Sood dying-Sangh asking appellant to vacate otherwise suing for criminal trespass-Appellant not vacating on the thinking that her stay could not amount to criminal trespass-In the complaint no allegation about the intention of the appellant to commit any offence or to intimidate, insult or annoy any person in possession-Whether appellant can be prosecuted for the offence of criminal trespass? (No) What is correct remedy? (suit for possession)
       Held at the most, it can be said that after the death of Shri Sood the leave and license granted by Shri Sood came to an end and if she stayed in the premises after the death of Shri Sood, her possession may he that of a trespasser but every trespass does not amount to criminal trespass within t he meaning of section 441 of the Indian Penal Code. In order to satisfy the conditions of section 441 it must be established that the appellant entered in possession over the premises with intent to commit an offence. A bare perusal of the complaint filed by Respondent No. 1 makes it abundantly clear that there is absolutely no allegation about the intention of the appellant to commit any offence or to intimidate, insult or annoy any person in possession. (Para 11)
       Consequently held the appellant may be fondly thinking that she had a right to occupy the premises even after the death of Shri R. C. Sood. If a suit for eviction is filed in the Civil Court she might be in a position to vindicate her right and justify her possession. This is essentially a civil matter which could be properly adjudicated upon by a competent Civil Court. To initiate criminal proceedings in the circumstances appears to be only an abuse of the process of the Court. (Para 12)
       (ii) Indian Penal Code, 1860-Sections 441 and 448-Criminal Procedure Code, 1973-Sections 456 and 401-Prosecution for criminal-trespass-Magistrate not only imposing fine under section 448 Indian Penal Code but also directing the appellant to vacate the premises within two months-Appellant appealing to Sessions Judge-Allowed-High Court reversing Sessions Judge on the ground that appeal to Sessions Judge was incompetent as no appeal could lie against -the imposition of fine and in view of section 401(5) Criminal Procedure Code it could not be treated as Revision-Whether correct-(No)
       Held we also do not agree with the view taken by the Court that the appeal filed by the appellant before the Sessions Judge was incompetent. If the learned Magistrate had only awarded a sentence of fine, in that case revision alone would be competent and not an appeal but in the instant case the Magistrate not only awarded the fine of Rs. 100/- but also directed the appellant to vacate the premises within two months from the date of the order. This part of the order presumably was passed under section 456 of the Criminal Procedure Code, and this made the order appealable and the High Court has gone wrong in holding that appeal filed by the appellant before the Sessions Judge was not maintainable. (Para 13)

Judgment

MISRA, J.:- The present appeal by special leave is directed against the judgment of the High Court of Judicature at Allababad, dated 16th December, 1980, convicting the appellant under Section 448 of the Indian Penal Code.

2. Premises Aranya Kutir bearing Municipal No. 47A Jakhan in Dehra Dun was owned by one R. C. Sood. He executed a gift-deed in favour of Shri Anand Mayee Sangh Dehra Dun with the stipulation that the donor shall remain in possession of the premises during his lifetime and after his death his widow if alive would remain in possession. The management of the same would be taken up by the Sangh after their death.

3. The appellant is the widow of the brother of Shri R. C. Sood. It appears that in 1967 the petitioner was invited by Shri R. C. Sood to reside with him in the aforesaid house and ever since she has been residing peacefully there. On 10th of October, 1973, Shri R. C. Sued expired. The appellant, however, continued to live in the said house.

4. Respondent No. 1, Shri Nawal Kishore as Secretary of the aforesaid Sangh served a notice dated 13th November, 1973 on the appellant asking her to vacate the premises in dispute immediately, failing which a criminal action under Section 448 of the Indian Penal Code would be taken against her as her further stay in the premises would be deemed to be in the nature of a criminal trespass. The appellant, however, did not vacate the premises as she was convinced that her stay in the said premises could not amount to criminal trespass.

5. Respondent No. 1, Shri Nawal Kishore thereupon filed a complaint under Section 448 of the Indian Penal Code against the appellant in the Court of Sub-Divisional Magistrate, Mussoorie. He examined himself as P. W. 1 and also produced Shri K. Bose as P. W. 2.

6. The appellant in her statement under Section 313, as well as in her statement as a witness D. W. 1 admitted the service of notice on her but denied that any, criminal action was called for. She further stated that she had met Anand Mayee who had permitted her to live in the house.

7. The learned Magistrate, however, took the view that the premises in dispute, has been vested in the Anand Mayee Sangh by virtue of the gift-deed and a notice to vacate having been served upon the appellant, the continued stay of the appellant in the said premises amounted to a criminal trespass within the meaning of Section 441 of the Indian Penal Code. He accordingly convicted the appellant under Section 448 of the Indian Penal Code and sentenced her to pay a fine of Rs. 100/- and in default to undergo simple imprisonment for 40 days.In addition, the learned Magistrate also passed an order directing the appellant to vacate the premises within two months of the passing of the order, purporting to be one under Section 456 of the Criminal Procedure Code.

8. The appellant feeling aggrieved by the order of the learned Magistrate went up in appeal and took up various grounds. The learned Sessions Judge allowed the appeal, set aside the order of the learned Magistrate and acquitted the appellant by his judgment dated 19th August 1975. Respondent No.1 Shri Nawal Kishore assailed the order of acquittal by filing a criminal appeal in the High Court and the High Court in its turn allowed the appeal and reversed the order of acquittal passed by the learned Sessions Judge and convicted the appellant. In the opinion of the High Court the appeal filed by the appellant before the Sessions Judge was incompetent as no appeal could lie against the imposition of fine. It also took the view that under the provisions of Section 401 (5) of the Criminal Procedure code it is permissible to treat a revision as an appeal but not vice versa. It therefore, declined to treat the appeal against the order of Magistrate as a revision. The High Court further expressed the opinion that the appellant may file a revision if she so chooses which would be considered by the Court of Admission and then if proper the same may be allowed. T

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