DEEPAKversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 17249 of 2026

Deepak
                                                             .....Applicant(s)
                                   Versus
State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)          :   Aditya Gupta, Harsh Vardhan Gupta
Counsel for Opposite Party(s)     :   G.A.

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

1. Heard learned counsel for the applicant and learned AGA for State.

2. The present application has been filed by applicant praying for quashing
of charge-sheet dated 05.07.2023 along with cognizance/summoning order
dated 07.08.2023 as well as entire proceedings of Criminal Case No.19149
of 2023 (State vs. Deepak and Others) arising out of Case Crime No.184 of
2023, under Sections 380, 447, 448, 504, 506 IPC, P.S. Jhinjhana, District-
Shamli, pending in the court of learned ACJM, Kairana, Shamli.

3. The only argument raised by learned counsel for applicant is that
implication of the applicant under Sections 447, 448 IPC in charge-sheet is
unwarranted since for implication under Sections 447, 448 IPC, prior notice
is mandatory as per U.P. Amendment Act, 1961. He further submits that
since there is minor difference between sections 447 and 448 IPC, i.e., 447
IPC relates to Criminal Trespass and 448 relates to House Trespass and as
such prior notice under amended section 441 IPC is mandatory for
implication in both the sections. In support of his submission, learned
counsel for applicant 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
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     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."

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. For proper appreciation of the rival arguments raised on behalf of parties,
amended Section 441, 447 and 448 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.

     448. Punishment for house-trespass. Whoever commits house-
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                                         trespass shall be punished with imprisonment of either
                                         description for a term which may extend to one year, or with fine
                                         which may extend to one thousand rupees, or with both."

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

                                    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
                                    "house trespass" and "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 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 "House Trespass" or "Criminal Trespass" can be said
                                    to be committed. Overlooking these facts, charge sheet has been filed under
                                    Sections 447, 448 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 07.08.2023 passed in pursuance
                                    of Sections 447, 448 IPC only, is quashed. In sofar as offence under
                                    Sections 380, 504, 506 IPC are concerned, the same is subject matter of trial
                                    and as such, learned court concerned is hereby directed to proceed with trial
                                    in pursuance of Sections 380, 504, 506 IPC only except Sections 447, 448
                                    IPC against applicant 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