JUDGMENT

Dr.D.P.CHOUDHURY, J. - This is an application filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as “the Code) to quash the order dated 18.02.2006 of taking cognizance of offence under Section 447 of the Indian Penal Code (in short ‘the IPC’) passed by the learned Sub-divisional Judicial Magistrate, Bhubaneswar in I.C.C. No.475 of 2006 and issuance of process against the present petitioners.

2. Mr. Pattnaik, learned Counsel for the petitioners submitted that Section 447 IPC would not apply to the facts and circumstances of the present case as the dispute, involved in this writ petition, is civil in nature. According to him, C.S. No.195 of ;2005 was filed by the present party before the learned Civil Judge (Senior Division), Bhubaneswar against the petitioners for eviction but the same fact has not been stated in the complaint for which the same is liable to be rejected.

3. Mr. Pattnaik, learned Counsel for the petitioners further submitted that the complainant is not the absolute owner of the shop room in question but a co-owner for which the proceeding at his instance only is not maintainable. According to him, the Orissa Amendment of Section 447 of the IPC is not attracted in this case because the petitioners have been regularly paying the rent but the complainant is refusing to receive the same. Since the learned Magistrate has not applied his judicial mind while passing the order of taking cognizance, the same should be quashed.

4. Mr. Pattnaik, learned counsel for the petitioners, in support of his submissions, has relied on the decision in the case of Sri Kumar Debasish v. State of Orissa and another*; (2008) 40 OCR 30 and Akapati Bhaskar Rao v. Trinath Sahu and another; 2002 (I) OLR 502.

5. Mr. Biswal, learned Counsel for the opposite party submitted that since 2001, the petitioners are not paying the rent to the opposite party for which a notice under Section 105 of the T.P. Act was issued to them to deliver the vacant possession of the shop room because the opposite party was in need of the same. According to him, in the instant case, the complainant has well proved prima facie case against the present petitioners and the learned Magistrate has rightly taken cognizance of the offence under Section 447 of the IPC. In support of his submissions, he relied on the decision in the case of Abdul Samad v. Md. Qamruddin and another; 2007 (Supp.-II) OLR 164 and also the decision in the case of Akapati Bhaskar Rao (Supra).

DISCUSSION

6. The impugned order passed by the learned Magistrate shows that after receiving the complaint, he examined the complainant, recorded the statement of the complainant under Section 200 of the Code and after finding out a prima facie case, took cognizance under Section 447 of the IPC. The said order dated 18.2.2006 is as follows :

“18.2.2006.

The case record is put up today for accordance of necessary order with respect to cognizance. Perused the complaint petition, initial statement of the complainant recorded u/s. 200 Cr.P.C. and the documents available on record. The materials on record reveal a prima facie case for commission of an offence punishable u/s. 447 of IPC. Hence, cognizance of the offence u/s. 447 of IPC is taken against the accused named in the complaint. Hence, issue summons to the accused fixing 4.4.2006 for appearance. The learned Counsel for the complainant is to file the requisite within a week from today for issuance of summons in both the ways.

Sd/- S.D.J.M., BBSR.”

7. Before going further, it would be just and proper to refer to the provisions contained in Section 441 of the IPC, as amended by the Orissa Act 22 of 1986, which is quoted herein below :

“441.Whoever enters into or upon property in possession of another with intent to commit an offence or to in 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 t