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1998 Supreme(HP) 192
High Court Of Himachal Pradesh
R.L.KHURANA
STATE OF HIMACHAL PRADESH - Appellant
Versus
Y.V.MEHRA - Respondent
Criminal Appeal No. 243 of 1993
Decided On : 10/21/1998
Mr. Ashok Sharma, Assistant Advocate General, with Mr. N.S. Grewal and Ms. P.P. Grewal, Advocates, for the Appellant; Mr P.N. Lau, Advocate, for respondents 1 to 5, 1 to 12 and 14 to 15; Mr. LA/. Sharma, Advocate, for respondents 6 and 13.
In cases of criminal trespass under Section 447 IPC, the prosecution must prove the complainant's actual possession of the property, not their title or ownership.
Headnote:
CRIMINAL TRESPASS - SECTION 447 IPC - POSSESSION - OWNERSHIP - EVIDENCE - BURDEN OF PROOF - FACT OF POSSESSION IS ESSENTIAL FOR CRIMINAL TRESPASS - OWNERSHIP IS IRRELEVANT - FAILURE TO PROVE POSSESSION LEADS TO ACQUITTAL.
Fact of the Case:
The State of Himachal Pradesh appealed against the acquittal of 16 respondents charged with offenses under Sections 147, 323, 447, 427, 435, and 506, read with Section 149, IPC, arising from a dispute over the demarcation of land between a Satsang and a Government High School. The Satsang claimed ownership of the land and obtained possession after a demarcation carried out by the Naib Tehsildar. The school challenged the demarcation, and a fresh demarcation was ordered, finding the land to be part of the school's playground. The Satsang contested this decision but was unsuccessful. The respondents were accused of trespassing, rioting, and damaging property during a construction project on the disputed land.
Finding of the Court:
The court found that the prosecution failed to prove the Satsang's possession of the land in dispute on the date of the alleged occurrence. The demarcation carried out by the Naib Tehsildar was set aside, and the subsequent demarcation showed the land to be part of the school's playground. The court also noted that the first information report was recorded after a delay and that the prosecution failed to prove the alleged second occurrence of trespass and rioting.
Issues: 1. Whether the prosecution proved the Satsang's possession of the land in dispute on the date of the alleged occurrence. 2. Whether the subsequent demarcation of the land, finding it to be part of the school's playground, affected the Satsang's possession. 3. Whether the delay in recording the first information report and the failure to prove the alleged second occurrence affected the prosecution's case.
Ratio Decidendi: 1. The court held that the definition of criminal trespass under Section 441 IPC focuses on possession, not ownership. The prosecution must prove the complainant's actual possession of the property, not their title or ownership. 2. The court found that the Satsang failed to prove its possession of the land in dispute on the date of the alleged occurrence. The subsequent demarcation, which showed the land to be part of the school's playground, supported this finding. 3. The court held that the delay in recording the first information report and the failure to prove the alleged second occurrence further weakened the prosecution's case.
Final Decision: The court dismissed the State's appeal and upheld the acquittal of the respondents. The court found that the prosecution failed to prove the Satsang's possession of the land in dispute, which was essential for establishing criminal trespass. The court also found that the subsequent demarcation of the land and the delay in recording the first information report further weakened the prosecution's case.
R.L. Khurana, J.—The State of Himachal Pradesh, has directed the present appeal against the judgment dated 6.7.1993, passed by the learned Chief Judicial Magistrate, Chamba, in Criminal Case No. 60-II of 1990, where by the sixteen respondents have been acquitted of the offences under Sections 147, 323, 447, 427, 435 and 506, read with Section 149, Indian Penal Code, arising out of F.I.R. No. 53/84 of Police Station, Dalhousie.
2. Briefly stated, the prosecution story is this. Radha Soami Satsang, hereinafter referred to as the Satsang, is a society registered under the Societies Registration Act, 1860. The satsang owns property known as Holy Lodge Annexe, Kozy Nook and Ellis Mere at Moti Tibba, within the local limits of Municipal Committee, Dalhousie. There is a Government High School at Moti Tibba, which is functioning in the main building of Holy Lodge. There exists a vacant area of land in front of the school, which was being used by the school as a play-ground for the last 30 to 40 years. A dispute arose regarding the demarcation of the said land. Consequently, on the application of the satsang demarcation of this land, hereinafter, referred to as the land in dispute, was carried out a on 19.10.1981 by PW 6, Parkash Chand, the then Naib Tehsildar, Dalhousie, assisted by PW 16, Prabh Dyal, the then Field Kanungo, Dalhousie. The land in dispute was found to be 0-3590 Acres. The same was denoted by Khasra No. 423/399/169/3 in the Aks Tatima, Ex PW 16/A. The Satsang by claiming the land in dispute to be belonging to it, represented to the Education Department to get back its possession. On 30.7.1983, Shri B.L. Handa, the then Director, Education, vide communication, PW 20/A, directed the then Principal, Shri Sudesh Raj Malhotra (respondent No. 9) of the Government High School to handover the possession of the land measuring 0-3590, comprising of Khasra No. 423/339/169/2, which was being used as play ground by the school, to the owner-Satsang. In compliance with the said directions, respondent No. 9, Shri S.R. Malhotra, is alleged to have delivered the possession of this land to the Satsang through its Executive Member, Madan Gopal Singh (PW 12) on 8.8.1983, vide Ex. PW 12/A. After obtaining the possession, the satsang is alleged to have enclosed the land by raising barbed wire fencing. The Satsang wanted to construct a Satsang Hall in such land for the purpose of holding its weekly prayers. The plans therefor were approved and sanctioned by the Municipal Committee, Dalhousie, on 5.1.1984. When construction work was started by the Satsang, respondent No. 1, Shri Y.V. Mehra, instituted some proceedings against the Satsang before the Sub-Divisional Magistrate, Dalhousie. The learned Magistrate passed a restraint order against the Satsang restraining it from raising any construction over the land in dispute. Such restraint order was assailed by the Satsang before this court by way of a writ petition being CWP No. 216 of 1984. This writ petition was allowed on 20.5.1984 and the restraint order of the learned Magistrate was set aside. The work of construction was then restarted by the Satsang. As on 3.7.1984, substantial construction stood completed and only also was to be laid.
3. It is alleged that on 3.7.1984, at about 3.45 p.m., all the sixteen respondents after having formed an unlawful assembly in furtherance of their common intention to commit rioting, after having trespassed into the land in dispute, started pelting stones at the work force of the Satsang. Due to pelting of stones the members of the work force had to abandon the work and leave the site of construction. Thereafter, all the respondents started demolishing the super-structure raised in the land in dispute by the Satsang. They collected the wooden construction material and had set the same on fire. The main buildings Ellismere and Kozynook belonging to the Satsang were also damaged by the respondents. Due to pelting of stones multiple injuries were susta
