The provisions of S. 441, I.P.C. (Orissa Amendment) shall not be applicable to statutory tenants, tenants under a lease, or persons with a genuine right over the property possessed. The intention of taking unauthorized possession or making unauthorized use must be proved to constitute the offence of criminal trespass. The High Court has the wholesome power to quash a proceeding if allowing it to continue would be an abuse of the process of the Court or the ends of justice require that the proceeding ought to be quashed.

ORDER :- Whether a tenant whose tenancy has come to an end by efflux of time on expiry of his tenancy or has been terminated by notice and who continues in possession of the tenanted premises can be said to have committed the offence of criminal trespass under Section 441, I. P. C. (Orissa Amendment). This is the moot question which needs to be determined in the present case where cognizance has been taken against the petitioner under Sections 447/448, I.P.C. which is under challenge in this application under Section 482, Cr. P. C.

2. The case of the petitioner (accused) is that he was a tenant under the opposite party (complainant) of the premises consisting of four rooms situated on plot No. 1687 under Khata No. 38 in village Sundergram, measuring an area of Ac. O.2.5 kadi. The said tenanted premises was given on rent to the petitioner on a monthly rent of Rs. 500/-and the petitioner was occupying the said premises as a tenant, on payment of monthly rent.

3. In July, 1998, the wife of the petitioner entered into a negotiation with the opposite party (complainant) for purchase of the tenanted premises and accordingly an agreement was executed between them on 25-7-1998 for sale of the tenanted premises for a consideration of Rs. 70,000/-, out of which the complainant received Rs. 50,000/- in two instalments and the balance consideration amount of Rs. 20,000/-was required to be paid by the end of June, 1999. In the said agreement, it was agreed upon between the parties that till full payment of the consideration amount, the petitioner and his wife would continue to pay rent to the complainant and that on payment of the full consideration amount necessary Sale Deed would be executed by the complainant (opposite party) in favour of the wife of the petitioner. It is the case of the petitioner that the opposite party (complainant) refused to receive the balance consideration amount of Rs. 20,000/- and demanded a further sum of Rs. 20,000/-as a condition precedent for executing the Sale Deed. In view of the refusal of the complainant to accept the balance consideration amount and execute the Sale Deed as per terms of agreement dated 25-7-1998, the wife of the petitioner filed Title Suit No. 109 of 1999 before the Civil Judge (Sr. Division), IInd Court, Cuttack along with Misc. Case No. 195 of 1999 under Order 39, Rules 1 and 2, C. P. C. for grant of ad interim injunction against the complainant, restraining him to alienate the suit property in favour of any stranger as well as from dispossessing the plaintiff from the suit land. The learned Civil Judge issued ad interim injunction against the present complainant restraining him from alienating the suit property in favour of a third person and from disturbing the possession of the present petitioner and his wife over the suit land.

4. The petitioner alleges that in spite of pendency of the civil suit, in which the complainant has already entered appearance and filed his written statement, he had filed the complaint registered as I. C. C. No. 5 of 2001 before the J. M. F. C. (R), Cuttack and the said complaint petition was sent by the learned Magistrate to Govindpur Police Station to treat it as F. I. R. under Section 156(3), Cr. P.C. and the police after investigation submitted charge-sheet under Sections 447 and 448, I.P. C. in G. R. Case No. 214 of 2001. The learned J. M. F. C. (R). Cuttack vide order dated 7-12-2001 has taken cognizance of offence under Sections 447/448, I.P.C. against the petitioner and has directed issue of N. B. W., which is under challenge in this application under Section 482, Cr. P. C.

5. From the complaint petition, it appears that the complainant admits the fact of tenancy and that the petitioner was a tenant on payment of monthly rent of Rs. 500/- in respect of the tenanted premises and also the fact that due to conflict regarding payment of rent and misuse of property the complainant had terminated the tenancy by issue of notice under S. 106 of the Transfer