Allahabad High Court
YUSUF AND 5 OTHERSversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
The court held that without the statutory notice under Section 441, the offence of criminal trespass under Section 447 does not arise, and the cognizance order for that charge is quashed.
Summary
The applicants, Yusuf and five others, were charged under Sections 447 (criminal trespass) and 489 (robbery) of the IPC for an alleged offence in Saharanpur. They filed an application under Section 528 seeking quash of the charge‑sheet and the cognizance order, contending that Section 447 cannot be invoked without a prior written notice as mandated by the Uttar Pradesh Amendment Act, 1961 to Section 441 IPC. The State opposed, arguing that the notice issue is for the trial court. The High Court examined the amended provisions of Sections 441 and 447 IPC and found that no notice had been served on the applicants, so the statutory element of criminal trespass was missing. Consequently, the court quashed the cognizance order for Section 447 but directed that the trial on the robbery charge under Section 489 continue. The application was allowed in part.
Issues considered
- Whether a charge‑sheet under Section 447 IPC is valid when the mandatory notice under the amended Section 441 IPC, as required by the Uttar Pradesh Amendment Act, 1961, has not been served.
Legislation cited
- Indian Penal Code — s. 441, 447, 489
- Uttar Pradesh Criminal Law (Amendment) Act, 1961
Subjects
- criminal trespass
- Section 447 IPC
- notice requirement
- U.P. Amendment Act 1961
- quash charge sheet
- cognizance order
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 17231 of 2026
Yusuf And 5 Others
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Manoj Kumar Mishra
Counsel for Opposite Party(s) : G.A.
Court No. - 77
HON'BLE SAURABH SRIVASTAVA, J.
1. Heard learned counsel for applicants and learned AGA for the State.
2. The present application has been filed by applicants praying for quashing
of charge-sheet dated 07.04.2024, cognizance/summoning order dated
02.07.2024 and the entire proceedings of Case No.11545 of 2024 (State Vs.
Yusuf and Others) arising out of Case Crime No.516 of 2023, under Sections
489, 447 IPC, P.S. Behat, District- Saharanpur, pending in the court of
learned Additional Chief Judicial Magistrate-1, Saharanpur.
3. The only argument raised by learned counsel for applicants is that
implication of the applicants 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 applicants place reliance upon a judgement of this Court
passed in the case of Rahtu Lal @ Rahtu Ram @ Divyanand & Others
Vs. State of U.P. & Another passed in Application U/s 482/378/407 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
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2
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."
4. Per contra, learned A.G.A. vehemently opposed the submission made on
behalf of applicants 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 applicants may move an application of discharge before
learned court concerned.
5. Since legal question has been raised by learned counsel for applicants and
as such, process for 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
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3
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
the land alleged to be of another person i.e. opposite party no. 2 has been
served on the applicants, therefore, there is no occasion for the applicants 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 applicants whereupon cognizance of offence was taken by
learned court concerned, is bad in the eyes of law.
9. In view thereof, cognizance order dated 02.07.2024 passed in pursuance
of Section 447 IPC, is quashed. In sofar as offence under Section 489 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
489 IPC only except Section 447 IPC against applicants herein.
10. Accordingly, the instant application stands allowed in part.
May 5, 2026
Saif
(Saurabh Srivastava,J.)
Digitally signed by :-
SHAIKH SAIF ABDIN
High Court of Judicature at Allahabad
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