To establish criminal trespass, intent to commit an offence must be proven; mere entry onto property without such intent does not constitute an offence.

JUDGMENT

This criminal petition has been instituted challenging the CR Case No.44/2019 under Section 447 /380 IPC pending in the Court of JMFC, North Salmara, Abhayapuri. After registration of the said complaint case and examination of the complainant’s witnesses, the learned JMFC, North Salmara, Abhayapuri issued summons upon the petitioner taking cognizance of the offences under Section 447 /380 IPC. Hence, this criminal petition.

2. Heard Mr. A. Roshid, learned counsel for the petitioner and Mr. S. Das, learned Amicus Curiae for the respondent.

3. It is submitted on behalf of the petitioner that the allegation made in the complaint, even if taken at their face value, do not constitute any offence under Section 447 /380 IPC.

4. It is further submitted that the petitioner and respondent are neighbours and there was land dispute between them and the instant complaint is actuated by malafide on account of such land dispute.

5. In order to ascertain the veracity of the aforesaid submissions, it would be instructive to reproduce the contents of the complainant instituted by the respondent, which is quoted herein below:-

“Sir,

It is respectfully stated that, the above mentioned accused Gangadhar Ray entered into the compound of the complainant with a view to commit theft at about 11 P.M. On 12-03-2019 night while the complainant and her old aged husband were sitting on bed after eating food. At that time the theft entered into the compound and made sound on back side of the wall where her husband sleeps. On hearing such sound, the complainant and witness No. 1came out with torch and weapon in their hand, searching all side. The accused was hiding in the back side of west house. The complainant and the witness No. 1 could identify him. the accused fled away on hue and cry. Dipen Ray and Akhil Ray came to the place of occurrence but could not apprehend the accused.

2. On 13-03-2019 at about 6 P.M., the complainant called a village mel before public at No. 1 Chari Punia, Protidhani Club. The witness Nos.

2, 3, 4 and about 10 Nos. public were present in the house of the accused but family members said that the accused is not present in the house. On query it is learnt that the accused is hiding in the house of Dipen Ray. Dipen Ray closed the door where accused was hiding. Lastly, village mel was stopped and fixed on 14.03.2019 for mel. On information the accused did not come. So some persons sent to bring the accused but he abused those persons and said that he is not in home. The mel was stopped and public asked to take shelter of law.

3. That earlier also the accused caused sound in the wall of house of the complainant.

It is prayed to investigate the same through the O/C, Abhayapuri P.S. and punish the accused.”

6. From the above contents of the complaint petition it is clear that not a single ingredient of Section 380 is present in the instant case. With regard to Section 447 IPC, it would be apposite to reproduce Section 441 IPC, which defines criminal trespass:-

“441. Criminal trespass- Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence is said to commit “criminal trespass.”

7. As per the complaint, the accused petitioner had entered into the house of the