AFSAR AND 9 OTHERSversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 18389 of 2026

Afsar And 9 Others
                                                             .....Applicant(s)
                                   Versus
State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)      : Madhukar         Bharti,   Prince     Kumar
                                Srivastava
Counsel for Opposite Party(s) : G.A.

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

1. Heard learned counsel for applicants and learned AGA.

2. The present application has been filed by applicant praying for quashing
of chargesheet dated 31.03.2024 along with cognizance/summoning order
dated 23.05.2024 as well as entire proceedings of Case No.21861 of 2024
(State Vs Afsar and others), arising out of Case Crime No.24 of 2024, under
Section 147, 323, 506, 448, 452 IPC, P.S. Koirauna, District Bhadohi,
pending in the court of learned Judicial Magistrate-II, Bhadohi Gyanpur.

3. The only argument raised by learned counsel for applicants is that
implication of the applicants under Section 448 IPC in charge-sheet is
unwarranted since for implication under Section 448 IPC, prior notice is
mandatory as per U.P. Amendment Act, 1961. In Support of his submission,
learned counsel for applicants 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 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,
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 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"

"448. Punishment for criminal trespass. Whoever commits house 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."

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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                                    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 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 23.05.2024 passed in Case
                                    No.21861 of 2024 (State Vs Afsar and others), arising out of Case Crime
                                    No.24 of 2024 in pursuance of Section 448 IPC, is quashed. In sofar as
                                    offences under Section 147, 323, 506, 452 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 Section 147, 323, 506, 452 IPC
                                    only except Section 448 IPC against applicants herein.

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

                                    May 5, 2026
                                    Vivek Kr.
                                                                                         (Saurabh Srivastava,J.)




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