The main legal point established in the judgment is the requirement of undisputed possession and intention to commit an offense or to intimidate, insult, or annoy the person in possession in cases of criminal trespass under Section 448 of IPC.

P.S. TEJI, J.

1. By this petition filed under Section 482 of Cr. P.C. the petitioner seeks to challenge the order dated 31.01.2013 whereby the learned Additional Sessions Judge dismissed the Crl. Revision No. 76/2012 filed by the petitioner against the order dated 06.04.2010 passed by learned Metropolitan Magistrate in FIR No. 889/2001 Police Station Uttam Nagar, Delhi.

2. The facts leading to the present case are that on 20.04.2000 the petitioner had purchased a plot measuring 190 sq. yds. from the owner Shri Ram Kumar and sold 100 sq. yds of the same back to him. Accordingly the petitioner was left with 90 sq. yds of the plot. On 25.07.2001 and 17.08.2001, the petitioner came to know that the respondent Nos. 2 and 3 have encroached upon his property and after taking possession thereof, they were carrying out digging work. The petitioner lodged a complaint in Police Station Uttam Nagar. Consequently the FIR No. 889/2001 was registered. For the purpose of protecting his rights, the petitioner instituted a Civil suit No. 228/2001 against respondent No. 3, which was compromised and it was decided that respondent No. 2 and 3 would hand over the possession of the plot to the petitioner and the petitioner will cooperate in quashing of the FIR registered against them. Neither, FIR was quashed nor respondent No. 2 and 3 handed over possession of the plot to the petitioner.

3. Petitioner again instituted a fresh suit which was dismissed by the learned Civil Judge, Tis Hazari courts, Delhi on 27.04.2012. Aggrieved by that order, the petitioner preferred an appeal bearing No. 50/2012, which is pending adjudication. On the other hand, petitioner came to know that in a case registered against respondent Nos. 2 and 3 vide FIR No. 889/2001, the learned Metropolitan Magistrate had discharged respondent No. 2 and 3 and against which the petitioner preferred revision petition before the learned Additional Sessions Judge, which was ultimately dismissed vide order dated 30.01.2013. Now, the petitioner is before this Court by way of the present petition under Section 482 of Cr.P.C.

4. Mr. Santosh Banerjee, learned counsel for the petitioner contended that the petitioner is a bonafide owner of the plot measuring 90 sq. yds at Khasra No. 44/25, at Village Hastal, Delhi known as Mohan Garden, Block L-1, New Delhi. It is further contended that immediately upon coming to know that the respondent No. 2 and 3 got illegal possession of the plot of the petitioner, he lodged the FIRs and also filed civil suits against them. First civil suit was dismissed as compromised and when the terms of settlement could not be acted upon, the petitioner filed another civil suit for declaration and possession, which was also dismissed. Appeal against the order of dismissal is pending adjudication. Later, the petitioner also came to know that the respondent No. 2 and 3 have been discharged by learned Metropolitan Magistrate against which the Revision petition filed before the learned Additional Sessions Judge was also dismissed.

5. Learned counsel for the petitioner has contended that the possession of the property was never handed over by respondent No. 2 and 3 to him, therefore the FIR registered against them was not quashed. Learned counsel for the petitioner contended that the Trial Court has committed error in holding that ‘the property that is required to be complained of should be in undisputed possession of a person who had complained of the said tresspass’. That the petitioner was in absolute possession of the plot in question, as stated in FIR as well as statement recorded under Section 161 of Cr.P.C. It was further contended on behalf of the petitioner that mere pendency of a civil litigation, does not mean that there cannot be any case of trespass and the learned Metropolitan Magistrate has wrongly held that ‘the pendency of a civil litigation inter-se the parties where the issue of possession of the plot was involved, no case of trespass was made out’