Civil proceedings' findings can affect related criminal cases, particularly regarding possession. Exclusive possession must be demonstrated to establish criminal trespass.

JUDGMENT

Anup Jairam Bhambhani J. By way of the present petition under section 482 of the Code of Criminal Procedure 1973 (`Cr.P.C.'), the petitioner impugns order dated 11.09.2017 made by the learned Additional Sessions Judge in CRL. REV.P No.289/2017 titled Rakesh Kadwal & Anr. vs. Vikram Verma & Anr., whereby the revisional court has set-aside order dated 29.06.2017 made by the learned Metropolitan Magistrate in CC No.46/1/2015, by which notice had been framed under section 448 of the Indian Penal Code 1860 (`IPC') against respondents Nos.2 and 3. By reason of the impugned order, respondents Nos.2 and 3 have been discharged in the matter.

2. The essential basis of the disputes is the petitioner's allegation that respondents Nos.2 and 3 have trespassed onto the terrace/roof of a shop bearing No. 800-A, Main Bazaar, Chirag Delhi (`subject premises') which is claimed to be in the petitioner's possession, by laying a concrete slab to connect the roof of the neighbouring building with the roof of the petitioner's building.

3. Notice on this petition was issued on 16.11.2017; consequent to which respondents Nos.2 and 3 have filed reply dated 21.08.2018; and the petitioner has filed rejoinder thereto. The State has however not considered it necessary to file any status report.

4. Mr. S.S. Panwar, learned counsel for the petitioner submits that the learned ASJ has erroneously held that the criminal offence of trespass is not made-out against the said respondents, based on the decision in a civil suit, in which the petitioner had claimed recovery of possession of the subject premises from the said respondents, which suit was dismissed by the learned Civil Judge. Counsel submits that though judgment dated 20.09.2016 dismissing the suit was subsequently upheld by the first appellate court in R.C.A. No. 8930/2016, since a second appeal bearing C.C No. 46/1/2015 is still pending consideration, the decision in the civil matter has not yet attained finality.

5. Mr. Panwar, submits that the decision in the civil matter will have no bearing on the criminal case; and even the evidence led in the civil suit cannot be read in the criminal prosecution. Mr. Panwar also places reliance upon Kishan Singh (dead) through LRs vs. Gurpal Singh and Others, (2010) 8 SCC 775 and Vishnu Dutt Sharma vs. Daya Sapra (Smt.), (2009) 13 SCC 729 to urge that civil and criminal proceedings are separate and distinct; and the decision of a civil court is not binding upon a criminal court.

6. On the other hand, Mr. Thakur Sumit, learned counsel appearing for respondents Nos.2 and 3 submits that on fundamental principles, once the petitioner's suit seeking recovery of possession of the subject premises has been dismissed by the learned Civil Judge, holding that the petitioner has not been able to show exclusive possession to the subject premises, the offence of criminal trespass can never be made-out.

7. A perusal of the impugned order shows that the decision of the learned ASJ proceeds on the following basis, as reflected in the extracted portions of the order:

"10. The dispute is found to be use of the roof/terrace of shop bearing No. 800A of the complainant. The complainant lodged the present complaint for unauthorizedly using the said terrace by the accused persons. The complainant filed the complaint against the entire family of accused persons, however two accused i.e. Rakesh and Jatin were summoned. During proceedings, an ATR was also called by police, police on inquiry filed report by observing that the said terrace is being used by the accused party since long thus no criminal offence is made out, and