The main legal point established in the judgment is that the mere entry of a spouse into a property, even if proven, does not constitute criminal trespass or theft, especially considering the unity of possession due to the subsisting marriage.

1. A criminal complaint was filed by the petitioner for summoning the respondent, his wife for offence punishable under Sections 380/448/451/506 IPC. In the complaint it was stated that the petitioner had purchased a property bearing No.32-A, Top Floor, Gali No.4, Mohan Park, West Guru Angad Nagar, Delhi (in short ‘the property’) in his own name by his own resources vide registered general power of attorney dated 4th June, 2004, Will, possession letter and receipt. The vacant possession of the property was handed over to the petitioner on 4th June, 2004. Since differences had arisen between the petitioner and the respondent, the petitioner and respondent both agreed to seek divorce by mutual consent and in this regard a petition for divorce by mutual consent was filed before the learned Additional District Judge wherein statements for first motion were recorded on 7th September, 2010. According to the petitioner, on 30th April, 2011 he came to know that somebody had entered the property and when he went there he found the respondent having illegally trespassed into the property. The petitioner did not find kitchen articles and luggage lying in the property. The respondent further threatened the petitioner. The petitioner was sure that the matter would be amicably settled as the parties had already got recorded their statements for first motion for divorce by mutual consent. However on 2nd May, 2011 at about 7.00 PM the respondent went to the petitioner’s office and humiliated him. In this regard, he made a complaint on 3rd May, 2011 to Police Station Shakarpur but no action was taken. Alleging that the respondent had illegally taken possession of the property and sold away the articles lying therein, the petitioner filed a complaint before the learned Metropolitan Magistrate.

2. Vide the order dated 28th May, 2012 the learned Metropolitan Magistrate dismissed this complaint of the petitioner after recording his statement on oath on the ground that the basic allegations of the petitioner were that the respondent illegally occupied the property belonging to petitioner and was still in occupation of the same. Learned Metropolitan Magistrate noted that civil litigation was pending in this regard before learned Additional District Judge and considering the fact that when the respondent allegedly entered the premises, she was still the wife of the petitioner as divorce had not been granted, thus no offence was made out. It held that the respondent cannot be held to be a trespasser in the property of the petitioner.

3. A revision petition filed by the petitioner was also dismissed vide the impugned order dated 5th October, 2012. Learned Additional Sessions Judge also reiterated that though the complainant stated about the first motion having been granted but there was no averment that the parties were divorced and thus the respondent cannot be held to have trespassed the property. The dispute being civil in nature, there was no illegality in the order of learned Metropolitan Magistrate.

4. The Supreme Court in the decision reported as (1997) 4 SCC 241 Krishnan & Anr. Vs. Krishnaveni & Anr. laid down the rule of caution to the High Court while exercising jurisdiction under Section 482 Cr.P.C. as under:

“10.Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure o