1. Rule. By consent, Rule is made returnable forthwith.

2. Respondents waive service.

3. By consent, heard finally forthwith.

4. The petitioners are the accused nos.1 and 2 in C.C.No. 13911/SS/2009 pending before the Metropolitan Magistrate, 65th Court at Andheri. The said case arises on a complaint filed by the respondent no.1 herein (hereinafter referred to as ‘the complainant’ for the sake of clarity and convenience).

5. Including the petitioners, totally six persons were mentioned as the accused, in the complaint, but after examining the complainant on oath as contemplated u/s.200 of the Code of Criminal Procedure, the learned Magistrate issued process only against five of them, i.e. the petitioners and three others. The allegation against the petitioners and other accused is in respect of offences punishable under section 447 IPC, 504 IPC read with section 34 of the IPC. Aggrieved by the order issuing process against them, the petitioners approached the Court of Sessions by filing an application for revision. A number of objections to the order issuing process as passed by the learned Magistrate were taken, but the learned Addl. Sessions Judge who heard the revision found that a prima facie case in respect of an offence of criminal trespass, had been made out. Holding so, he dismissed the revision application. Being aggrieved by the order passed by the Magistrate issuing process against them, and the order dismissing their revision application, as passed by the learned Addl. Sessions Judge, the petitioners have approached this Court invoking its constitutional jurisdiction.

6. I have heard Mr.Jatin Shah, learned counsel for the petitioners. I have heard the respondent no.1 who initially appeared in person, and I have thereafter heard Mr.P.R. Arjunwadkar, his counsel. With the assistance of the learned counsel, I have gone through the revision, the annexures thereto and more particularly the complaint, as filed by the complainant, and the order passed by the Court of Sessions in revision.

7. In the complaint, the complainant has alleged as follows:-

That the complainant is the owner and landlord of a house property known as ‘Pundlik Nivas’ situate at Vile Parle (East). The petitioners and the other accused are the tenants/occupants of different premises in the said property. (One of the accused i.e. accused no.6 is a civil contractor, but against him no process has been issued). It also appears that the tenants and occupants of the said property have formed an association, and are after the complainant for disposing of his property by giving it to a developer or builder. The complainant is not ready to dispose of his property just for the convenience of the tenants/occupants, and therefore, there exists civil dispute between the complainant and the accused persons, including the petitioners. That, on 30 May 2009, the complainant noticed that the accused had unlawfully put up scaffolding on the southern side of the said property without his permission. That, the accused persons had thus committed trespass on the open area forming part of the said property. That, when questioned, the petitioners and the other accused, instead of being apologetic for their unlawful trespass, started abusing the complainant’s son in a filthy language. The complainant came there, and he was also abused by the petitioner and the other accused. It is on these averments that an allegation of an offence punishable under section 447 of the IPC and 504 of the IPC, has been levelled in the said complaint against the petitioners and other accused.

8. In my opinion, even if the averments in the complaint are taken at the face value, and accepted in entirety, they do not constitute the offence of criminal trespass.

9. The offence of criminal trespass punishable under section 447 of the IPC is defined in section 441 of the IPC. The ingredients of this offence are as follows:-

(i) Entering into or upon the property in the possession of a