UMESH CHANDRA YADAVversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 15281 of 2026

Umesh Chandra Yadav
                                                             .....Applicant(s)
                                   Versus
State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)            :   Ravi Pandey, Shashi Kant Ojha
Counsel for Opposite Party(s)       :   G.A., Shailendra Kumar Verma

Court No. - 77
                 HON'BLE SAURABH SRIVASTAVA, J.

1. Heard learned counsel for applicant and learned AGA.

2. The present application has been filed by applicant praying for quashing
of cognizance/summoning order dated 11.09.2025 as well as entire
proceedings of Criminal Case No.13246 of 2024 (State Vs Satendra Yadav
and others), arising out of Case Crime No.187 of 2023, under Section 147,
427, 447, 504 IPC, P.S. Mahuwakheda, District Aligarh, pending in the court
of learned Judicial Magistrate/Additional Civil Judge (J.D.), Court No.2,
Aligarh.

3. The only argument raised by learned counsel for applicant is that
implication of the applicant under Section 447 IPC in charge-sheet is
unwarranted since for implication under Section 447 IPC, prior notice is
mandatory as per U.P. Amendment Act, 1961. In Support of his submission,
learned counsel for applicant placed reliance upon a judgement of this Court
passed in the case of Rahtu Lal Rahtu Ram @ Divyanand and others
passed in Application U/2 No. 1421 of 2004, relevant paragraph of the said
judgment is being quoted hereinbelow:-

"5.7 In the above facts and circumstances, applicants cannot be termed as
trespassers nor they can be tried under the provisions of Section 447 I.P.C.,
because no offence under that section is made out against the applicants.
Since notice under amended Section 441 I.P.C. is mandatory requirement
but the same has not been completed, because no notice under Section 441
I.P.C. is ever sent to applicants. Due to non compliance of this mandatory
provision, offence of "criminal trespass" which has been defined in Section
441 I.P.C. has not been made out, therefore, charge sheet filed against
applicants under Section 447 I.P.C. is legally not sustainable."
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4. Per contra, learned A.G.A. vehemently opposed the submission made on
behalf of applicant by way of submitting that effect of non sending of notice
under amended Section 441 I.P.C. has to be looked by learned court
concerned and applicant may move an application of discharge before
learned court concerned.

5. Since, legal question has been raised by learned counsel for applicant,
process of issuing notice to opposite party no.2, is hereby dispensed with.

6. For proper appreciation of the rival arguments raised on behalf of parties,
amended Section 441 and 447 I.P.C. are of vital importance and the same are
reproduced hereinbelow :-

"441. Criminal trespass.- Whoever enters into or upon property in
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 Law (U.P. Amendment) Act, 1961, with the
intention of taking unauthorised possession or making unauthorised use of
such property fails to withdraw from such property, or its possession or use
when called upon to do so by that another person by notice in writing, duly
served upon him, by the date specified in the notice, is said to commit
"criminal trespass"

"447. Punishment for criminal trespass. Whoever commits criminal
trespass shall be punished with imprisonment of either description for a term
which may extend to three months, or with fine which may extend to five
hundred rupees, or with both."

7. It is quite clear from perusal of above amended Section 441 I.P.C. that any
person entered into possession of any property of another person before or
after coming into force of the criminal law (U.P. Amendment Act, 1961),
with the intention to take unauthorised possession or making unauthorised
use of such property and fails to withdraw from such property or its
possession or use in compliance of the written notice of another person duly
served upon him by the date specified in the notice as said to committed
"criminal trespass".

8. Admittedly, in this case, no written notice as specified in the amended
Section 441 I.P.C. to withdraw from such property or its possession or use of
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                                                                    3

                                    the land alleged to be of another person i.e. opposite party no. 2 has been
                                    served on the applicant, therefore, there is no occasion for the applicant to
                                    comply with such notice and vice-versa failing to comply with the notice and
                                    as such, no offence of "Criminal trespass" can be said to be committed.
                                    Overlooking these facts, charge sheet has been filed under Section 447 I.P.C.
                                    against the applicant whereupon cognizance of offence was taken by learned
                                    court concerned, is bad in the eyes of law.

                                    9. In view thereof, cognizance order dated 11.09.2025 passed in Criminal
                                    Case No.13246 of 2024 (State Vs Satendra Yadav and others), arising out of
                                    Case Crime No.187 of 2023 in pursuance of Section 447 IPC, is quashed. In
                                    sofar as offence under Section 147, 427, 504 IPC is concerned, the same is
                                    subject matter of trial and as such, learned court concerned is hereby
                                    directed to proceed with trial in pursuance of Section 147, 427, 504 IPC only
                                    except Section 447 IPC against applicant herein.

                                    10. Accordingly, the instant application stands allowed in part.

                                    May 7, 2026
                                    Vivek Kr.
                                                                                        (Saurabh Srivastava,J.)




Digitally signed by :-
VIVEK KUMAR
High Court of Judicature at Allahabad