Continued possession of property after the termination of tenancy, with the intention to take unauthorized possession or make unauthorized use of the property and failing to withdraw after receiving a notice to do so, amounts to criminal trespass under the amended Section 441, IPC.

R. K. DASH, J.

( 1 ) THE petitioners (hereinafter referred to as 'the accused persons') by filing the present petition under S. 482, Cr. P. C. have invoked the inherent power of the Court to quash the proceeding in 1 CC No. 142 of 1993 pending in the Court of the Sub-divisional Judicial Magistrate, Bhubaneswar. The complainant, opposite party herein, filed the aforesaid complaint alleging inter alia that he being the owner of the premises comprising a shop room at C/58, Market Building, Sahidnagar, Bhubaneswar, let out the same to the accused persons on 1-4-87 on a monthly rent for a period of six years ending on 31-3-1993. On the expiry of the period though the tenancy automatically stood terminated, yet the complainant, in abundant caution, issued notice under S. 106 of the Transfer of Property Act calling upon the accused persons to give him vacant possession of the tenanted premises. Despite the said notice the accused persons continued to possess illegally and unauthorisedly, whereupon he issued another notice through his Advocate informing them that if they did not vacate the premises, he would be constrained to approach the court for appropriate legal action. Even after receipt of the notice, the accused persons continued to possess as before for which the complainant tiled the aforesaid complaint praying that since their unauthorised occupation of the premises amounts to 'criminal trespass' under S. 441 as substituted by Orissa Act 22 of 1986, they should be suitably punished in accordance with law.

( 2 ) EARLIER to the present case, the complainant had filed ICC No. 79 of 1993 and on approach being made by the accused persons this Court quashed the said proceeding because of non-compliance of the statutory notice as provided in Orissa Act 22 of 1986. Thereupon, the complainant served the statutory notice and filed the present complaint. Learned Magistrate after recording initial statement of the complainant under S. 200, Cr. P. C. was satisfied that there was a prima facie case under S. 448, IPC and accordingly took cognizance of the said offence. The accused persons then moved the Court below to recall the said order and the learned Magistrate upon hearing the parties came to hold that since a prima facie case has been made out against the accused persons the order of taking cognizance does not call for any interference. Feeling aggrieved thereby, one of the accused persons moved this Court in Criminal Misc. Case No. 312 of 1994. Upon hearing, the Court directed the learned Magistrate to reconsider the prayer of the accused persons in the light of the submissions, documents and the decisions relied upon by them and to pass a fresh order in accordance with law. Consequent upon such order, the learned Court below heard the parties and on consideration of the facts and circumstances of the case and relying upon the decisions cited at the Bar, held that there is sufficient ground to proceed against the accused persons for the offence under S. 448, IPC and consequently rejects the prayer. Hence the present petition.

( 3 ) LEARNED counsel for the accused persons contended with vehemence that since the initial entry of the accused persons to the premises inquestion was lawful, inasmuch as they came to possess the premises on the basis of a valid agreement as monthly tenants, any action for their eviction would lie in the civil Court and not the criminal court. So, this proceeding having been initiated with an ulterior motive to evict them from their lawful possession, should be quashed in exercise of power under S. 482, Cr. P. C. Counsel further urged that M/s. Corona Limited, a registered company, was inducted as a tenant and these accused persons being the mere employees are not in charge of and responsible to the company and so, in absence of specific accusation against them initiation of the present criminal proceeding is uncalled for. On the other hand, learned counsel for the complainant submitted that after termina