Unauthorized possession of property does not constitute criminal trespass, and the court should exercise circumspection in interference under Article 227 and Section 482 of the Code of Criminal Procedure.

1. Heard Mr.Dalvi, the learned counsel for the petitioner.

Heard Mr.Chandrakant Sao, respondent no.2 who appears in person. Heard Ms.Malhotra, the learned A.P.P. for respondent - State of Maharashtra.

2. In this petition under Article 227 of the Constitution of India, Rule was issued by an order dated 27th June, 2014. At the instance of the respondent no.2 herein the petition was placed on board for final hearing.

3. The petitioner is the accused in CC No.48/SW/2014, pending before the Metropolitan Magistrate 45th Court Kurla, Mumbai. The case arises on a complaint filed by the respondent no.2 herein. The complaint was filed alleging commission of offences punishable under Sections 420 IPC, 452 IPC, 465 IPC, 467 IPC, 471 IPC and 448 IPC but the learned Magistrate after examining the respondent no.2 on oath, as contemplated under Section 200 of the Code of Criminal Procedure, and after considering the report submitted by the police under the provisions of Section 202 of the Code of Criminal Procedure, the Magistrate formed an opinion that the offences mentioned in the complaint were not made out, but that a case for proceeding against the petitioner herein with respect to the offence punishable under Section 453 of the IPC was made out. The Magistrate therefore directed process to be issued only with respect to the offence punishable under Section 453 of the IPC against the petitioner herein. Being aggrieved by the order issuing process, the petitioner has approached this Court by filing the present petition and is also invoking the inherent powers of this Court praying that the order issuing process be quashed and set aside.

4. For the sake of convenience and clarity the petitioner shall hereinafter be referred to as 'the accused' and the respondent no.2 as 'the complainant'.

5. I have heard the complainant who appears in person at length. I have also carefully gone through the complaint and the order passed by the Magistrate directing process to be issued with respect to the offence punishable under Section 453 of the IPC.

6. The complainant and the accused are real brothers. The accused is the younger brother of the complainant. The complainant's case in brief is that the accused has forcibly taken possession of flat nos.702 and 802 in Ridhi Sidhi Apartment at Chunabhatti Sion by breaking open the locks put thereupon by the complainant.

7. The complainant's case is that the accused had been residing in United States of America and is an American citizen. That, the accused has lost his right, title and interest in the property left by the father of the complainant and accused, in view of the provisions of the Limitation Act, and other Indian Acts. That on 31st May, 2012, the accused came along with some anti-social elements, forcibly broke open the locks put on the flat nos.702 and 802 by the complainant, and took forcible possession thereof.

8. A number of contentions have been advanced on behalf of the accused. It is submitted that actually the flats in question belong to the accused himself. It is submitted that the complainant had attempted to grab these flats by taking advantage of the absence of the accused from India. It is also submitted that the possession of the flats in question was not at all forcibly taken by the accused, but that it was handed over to him by the builder himself. It is submitted that in the inquiry proceedings initiated under Section 145 of the Code of Criminal Procedure, statements of certain persons including that of the builder were recorded and that these statements falsify the case of the complainant.

9. In the view that I am taking it is not necessary to go in to the factual disputes that have been raised. The question that really needs determination is whether, on a reading of the complaint, a case for proceeding against the accused on the allegation of having committed an offence punishable under Section 453 of the IPC, was made out.

10. Section 453 provides punishment for lurking house tr