( 1 ) THIS petition u/s. 482 of Code of Criminal Procedure 1973 (for short code of Criminal Procedure ) is directed against the order dated 26th November, 1993 passed by the court of Metropolitan Magistrate, framing charge against the petitioner under Section 448 Indian Penal Code, in the case FIR No. 13/91 P. S. Anand Parbat, Delhi. The question which arises for consideration is : Whether the corporation was or not in possession of the premises, after the same were duly sealed under Section 345-A of Delhi municipal Corporation Act (here-in-after DMC Act), for unauthorised construction?

( 2 ) THE facts in brief are: On 11/12/1990 the Deputy Commissioner, municipal Corporation of Delhi, after considering reports regarding unauthorised construction, at premises No. 25/8-A, Gali No. 7, Anand Parbat, Karol Bagh, Delhi (hereinafter REFERRED TO to as "the premises"), in exercise of the powers vested in him u/ss. 345-A and 491 of DMC Act, and the Rules made thereunder, directed the zonal Engineer to forthwith seal the premises where the said unauthorised construction/erection or work was being carried out. It was further ordered that the said premises shall remain sealed with the seal of MCD and shall remain in the personal custody of the Zonal Engineer and that no person shall remove the seal except under the orders of the authorities provided by sub-section (3) of Section 345-A of the Act. In pursuance of this order, Zonal Engineer-Building, Karol Bagh sealed the entire building at ten different points, on 7/12/1990 SHO, P. S. Anand Parbat was informed about the same, and specimen seal affixed at the said premises alongwith, copy of the sealing order was also sent to him. He was requested to keep a strict watch over the seals so that the same are not disturbed or removed. On 7/01/1991 Junior Engineer (Building) during inspection of the area found that seals of the above said premises were broken without any order and that the owner/builder had started further unauthorised construction. Consequently on 8/01/1991, the Zonal Engineer (Building), lodged a report with the SHO. FIR for criminal trespass was registered. After completion of investigation challan was filed and cognizance was taken. Learned trial court by the impugned order found that prima facie case of criminal trespass was made out against the petitioner and charge under Section 448 I PC was framed against him. The same is under challenge. I have heard learned counsel for the petitioner and learned APP for the State and have been taken through the record.

( 3 ) LEARNED counsel for the petitioner argued that the offence of criminal trespass as defined in Section 441 Indian Penal Code, can only be committed against a person who is in actual physical possession of the premises; it pre-supposes, positive and de-facto possession of the complainant. In this case the possession of the premises remained with the petitioner, being owner of the premises and merely because the premises were sealed by the Corporation u/s. 345-A of the DMC Act, for some alleged unauthorised construction, it cannot be said that petitioner was dispossessed. Therefore, framing the charge of criminal trespass is liable to be quashed. Reliance was placed on the decisions: (1) Janggu @ Shobhit and others v. State of M. P. , 2000 (1) Crimes 7; (2) Golak Baliarsirigh v. Puma chandra Baliarsingh and Ors. , 1977 Crl. LJ. (NOC) 77 (Orissa), (3) G. Gurdial singh and Ors. v. Abhey Dass, AIR 1967 Pandh 244, (4) Basanta Kumar Gon v. The State, AIR 1956 Cal 118, (5) Lalchand Pitumal v. Emperor, AIR 1933 sind 396, (6) Bismillah and Ors. v. Emperor, 1929 Cr. LJ. 745.

( 4 ) THERE cannot be any dispute about the proposition of law that offence of criminal trespass pre-supposes, positive or de-facto possession of the complainant and in the absence of the same prosecution cannot succeed. The possession referred TO to in Section 441 must be actual possession of some person other than the alleged trespasser and