The main legal point established is that the specific elements and requirements of each offence under Sections 441, 448, 504, and 506 IPC must be met for the charges to be sustained.

JUDGMENT :

(Arun Kumar Singh Deshwal, J.) :

1. Heard learned counsel for the applicant, Sri Asim Kumar Singh, learned counsel for the opposite party no.2 and Sri Rajeev Kumar Singh, learned AGA for the State.

2. Present application u/s 482 Cr.P.C. has been filed for quashing the entire criminal proceeding as well as the charge sheet dated 05.09.2017, including the cognizance order dated 30.05.2019 in Case No. 30028 of 2019 arising out of Case Crime No.582 of 2010, under Sections 448, 504, 506 IPC, Police Station- New Agra, District Agra pending in the Court of Chief Judicial Magistrate, Agra.

3. Contention of learned counsel for the applicant is that it is undisputed that the adjoining plot, i.e. 200 sq mtr, belongs to the applicant's father, and the first informant is the applicant's maternal uncle. The present proceeding is malicious, as several disputes have been pending between the parties. It is further submitted that as per Section 441 of IPC (U.P. Amendment), there is a requirement for sending a notice to call upon the encroacher to withdraw himself from the property. It is further submitted that no offence under Section 448 IPC is made out because it is the admitted case of the informant that it was the plot, while Section 448 IPC is regarding trespassing in the house. He further submits that the requirement for sending notice before lodging the FIR under Section 441 IPC is mandatory.

4. Counsel for the applicant has relied upon the order of the co-ordinate Bench of this Court in Somnath Paul vs Ram Bharose 1990 (2) JIC 541, as well as the order dated 10.05.2017 passed by the Co-ordinate Bench of this Court in Application u/s 482 Cr.P.C. No. 8724 of 2010 (Dev Shankar Shukla @ Sajjan vs State of U.P. and other). It is also submitted that the final report was initially submitted on 12.08.2011; thereafter, after almost five years, a protest petition was filed on 06.08.2016, which was allowed on 10.04.2017, and police were directed to conduct further investigations. Thereafter, police submitted a charge sheet on 05.09.2017 which is impugned in the present case, but during further investigation all the witnesses have not made allegations regarding offence under Sections 504, 506 IPC.

5. Per contra, learned counsel for the opposite party No. 2 submits that the requirement of sending a notice under Section 441 is not mandatory and the offence is made out against the applicant because he has encroached over the plot of the first informant.

6. Learned AGA also adopted the argument of counsel for the opposite party no.2 and submits that from perusal of the record prima face case is made out against the applicant, therefore, no ground for interference is made out.

7. Having heard the learned counsel for the parties and after perusal of the record, this fact is undisputed that before lodging the FIR in question, opposite party no.2 had not sent any notice in writing to the applicant calling upon the applicant to withdraw from his property. The criminal trespass is defined under Section 441 IPC (U.P. Amendment). Section 441 IPC provides that if any person take unauthorised possession or makes unauthorised use of property of another person then if he fails to withdraw from such property on receiving the written notice of the owner of that property calling upon him to withdraw from such property, he is said to commit 'criminal trespass'. Section 441 IPC (U.P. Amendment Act) is being quoted hereinbelow;

"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".

Or having entered into or upon such property, whether before or after the coming into force of the Criminal Laws (U.P. Amendment) Act, 1961 with the intention of