Holding

A mere trespass without intent to commit an offence or to intimidate, insult or annoy does not constitute criminal trespass under section 441, and the appeal against the magistrate’s order was maintainable.

Summary

R.C. Sood gifted a house to Anand Mayee Sangh with a stipulation that he could occupy it during his lifetime and, after his death, his widow could remain. The appellant, the widow of Sood's brother, was invited by Sood to live in the house in 1967 and continued to reside there after his death in 1973. The Sangh served a notice demanding her vacate and threatened criminal action under IPC section 448; she did not leave, leading to a complaint and conviction for criminal trespass. The Sessions Judge set aside the conviction, but the High Court reversed, holding the appeal against the magistrate’s order incompetent. The Supreme Court held that section 441 requires an intent to commit an offence or to intimidate, insult or annoy, which was absent, making the criminal complaint an abuse of process, and that the appeal was maintainable because the magistrate’s order included a direction under CrPC section 456. Consequently, the appeal was allowed and the High Court judgment set aside.

Issues considered

Whether the appellant's continued occupation after the donor's death amounted to criminal trespass under IPC section 441 (as amended by the U.P. Amendment Act, 1961).
Whether a criminal proceeding under IPC section 448 was appropriate or an abuse of process, given the civil nature of the eviction dispute.
Whether the appeal against the magistrate’s order, which included a direction to vacate under CrPC section 456, was maintainable.

Legislation cited

Subjects

criminal trespassIPC 441IPC 448gift deedevictioncivil vs criminal jurisdictionappealabilityCrPC 456abuse of process

Judgment

;
871
.A
SMT. KANW AL SOOD
v.
NAWAL KISHORB.AND ANOTHER·
. November 26, 1982 ·

[D.A; DESAI, AND R.B. MISRA JI.)
,
Criminal tre1spa.rs-Donor re1ening . /ife interest in., the house gifted to the
done~Permitting another to re1ide with hlm-Statu14ofthat perSon after the death · C
of the donor whether.hU occupation would amount to Criminal trespaJ1-Penal
Code Section 441 aJ amended by U.P•. Act JI of 1961. ·

. Premise!,. "A.ranaya. Kutir" .. bearing~_ Municipal No. 47A :Jakhan:. in
• Dehradun was owned by one Sbri R.C. Sood •. He .executed a gift' deed in favour -
or Shree Anand Mayee.Sangh. Dehradun,. with a stipulation that the-donor shall·;.
remain in' possession or the premises during -his lif~time and arter his death hi• . D "'!
widow if alive wouJd remaiii in possession.- The management of the same would
be taken up b7 the Sangh after their death;

..
In 1967, the appellant,. the. widow or_ the brother of Shri R.C. Sood was ,

.. invited by ShriSood to .reside with .him-in ,the aforesaid house and ever.since
she has been resi_ding peacefully_ there. _On .10th of- October~ 1973 Shri R.C •.
Sood expired. Respondent No. 1;· Shri Nawal ·- Kishore as Secretary of the
Anand Mayee Sangh. served a notice dated 13th November, 1973 on the u.ppellant
asking her to vacate the premises· immediatelyi and threatening to take criminal
action against her on failure to do so, as her further stay in the premises would .
be deemed t<?_ be. in the nature of a criminal trespass. "When the appellant did
. . _ not vacate ~be premises, respondent No. 1 filed a complain5 under section 468
'ofJhe PeD.al Code. The Sub·Divisional Magistrate, Mussorie fourid that the
coD.tinued stay or the appcUant amounted to criminal trespas!I within the meaning
or section 441 of the Penal Code, convicted her under section 448 and sentenced
her to pay a fine or Rs. 100 or in lieu thereof to undergo simple imprisonment
for 40 days. Jn addition, the learned Magistrate also passed an order dirtcting
the appellant to _~acate the premises within twO _months of _ th~ order, purporting
, to be one under section 456 oi the Criminal Procedure Code:

G
_ The appeal preferred by the iPDelJant was allowed and the conviCtion and
-.....___sentence pa!sed were set aside~· Respondent No. 1, therefore assailed the order
or acquittal by filing a criminal appeal before the, High Court. The High Court
allowed it and reversed thO order of. acquittal passed by the. Sessions Judge and
convicted the appellant. In the opinion of the High Court, the appeal filcl by
the appellant before the Sessioos Judge was. incompetent. as no appeal would lie
against the impositi9n of fine.. The High Court, declined to treat the appeal as
r; 1is ion in as much as under \he provisi?D$ of section 401(~ of the Crimin~

L
872 SUPREME COURT REPORTS [1983) 1 S.C.11,

A Procedure Code, it is permissible to treat a revision a~ an appeal but not vice
versa. Hence the appeal by sp~cial leave.

Allowing the appeal, the Court '
HELD: 1:1.. In order to satisfy the conditions of section 441 of the
. Penal Code, it rn.ust be established that the party, complained of eri.tered in
B possession over the premises with intent to. commit an offence. Every trespass
does not amount to criminal trespass within the meaninS Ofthat section. [875 G]

1:2. Initiating criminal proceedings in the circumstances of this instant
case is only an abuse of the process of the court. This is essentialTy a civil
matter which could be properly adjudicated uPon by a competent civil court.
(a) The appellant was' allowed to occtlpy tho premises in 1967 by Mr. Sood
c perhaps on •tease and license' basis. (b) A bare perusal of the complaint filed by :
Respondent No. 1 makes it abundantly clear that there is absolutely no allegation
about the intention of the appetlant to commit any offence, or to intimidate,
insult or annoy any person in possession ; and (c) If a suit for eviction is filed
in the civil court, the appellant, who may be fondly thinking that she had a
right to occupy the premises even after the death of Shri Sood, might be in a
position to vindicate her right and justify hei p_ossCssion. f87S E-H, 876 A, E-F]
D 2. The ·appeal filed by the appellant before the Sessions Judge was
competent and maintainable. If the learned Magistrate had only awarded a
sentence of fine, in that case revision alone would be competent and not an
appeal. But in the instant case, the Magistrate not only awarded the fine of
Rs. 100 but also directed the appeJlant to vacate the premises within two months
from the date of the order. This part of the order presumably Was passed uni:ler
E section 456 of Criminal Procedure Code, and this made the order appea1able.
[876 F-H] :
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 69
of 1981

Appeal by special leave from the Judgment and order dated -
F the 16th·December, 1980 of the Allahabad High Court in Criminal
Appeal No. 342 of 1976. ~

Soli J. Sorabjee, R.K. Jain, R.P. Singh and Natin Mohan Popli
for the Appellant.
G
P.R. Mridul, Praveen Kumar, A.K. Sharma and Da/veer
Bhandari for the Respondent.

H
The Judgment of the Court was delivered by

MISRA J. The present appeal by special leave is directed
against the judgment of the High Court of Judicature at Allahabad,
-
KA NW AL SOOD v; NA WAL KISH ORE (Misra, J.) 873

dated 16th December, 1980, convicting the appellant under section A
448 of the Indian Penal Code.

Premises Aranya Kutir bearing Municipal No. 47 A Jakhan ·
in Dehra Dun was owned' by one R.5C. Sood. He executed a gift·
deed in favour of Shri Anand Maye! Sangh, Debra Dun with the
stipulation that 'the donor shall remain in possession of the premises 8
during his life time and after his death his widow if alive jVould
remain in possession. The management of the same would be taken
up by· the Sangh after their death .

. The appellant is the widow of the brother of Shri R.C Sood.
It appears that in 1967 the appellant was invited by· Shri R.C. Sood
c
to reside with him in the aforesaid house and ever since she has
been residing peacefully there. On 10th of October, 1973, Shri R.C.
Sood ·expired. The appellant, however, continued to live in the said
·house.
" Respondent No. I, Shri Nawal Kishore as Secretary of the
D
·aforesaid Sangh served a notice dated 13th November, 1973 on the
appellant asking her to vacate the premises in dispute immediately,
failing which a criminal action under section 448. of the Indian Penal
Code would be taken against .her as her further stay in the premises
would be .deemed to be in the nature of a criminal trespass. The E .,
appellant, however,' did not vacate the premises as she was convinced
that her stay in the said premises could not amount to criminal
trespass.

·Respondent No. l, Shri Nawal Kishore thereupon filed a
complaint under section 448 of the. Indian Penal Code against the· F
appellant in the Court of Sub-Divisional Magistrate, Mussoorie.
He examined himself as P. W. I and also produced Shri K. Bose as
P.W,2. .
•
The appellant in her statement under section ·313, as well as G
in her statement as a witness D. W. I admitted the s~rvices of notice
on her but denied that any criminal action was called for. .She
further stated that she had met Anand Mayee who had permitted her
. > to live in the house.
H
·The learned Magistrate, however, took .ihe view that the ·
premises in dispute has been vested in \h' A,nand Mayee Sangh b}'
' ' . ' ~
, 874 SUPREME COURT REPORTS [1983] I S.C.R

/f' virtue ·0f the gift-deed and a notice to vacate having been served
upon. the appe\!an.t, the continued stay of the appellant in the said
premises amounted to a criminal trespass within the meaning of
section 441 of the Indian Penal Code. He accordingly convicted
the appellant under section 448 to the Indian Penal Code and
sentenced her to pay a fine of Rs. JOO and in default to undergo
8 simple imprisonment for 40 days. In addition, the learned Magistrate
also passed an order directing the appellant to vacate the premises
within two months of tbe passing of the order, purporting to be
one under section 456 of the Criminal Procedure Code. ' ..
The. appellant feeling aggrieved by the order of the learned
Magistrate went up in appeal and took up various grounds. The
learned Sessions Judge allowed the appeal, set aside the order of
the learned Magistrate and ·acquitted the appellant by his judgment
dated 19th August, 1975. Respondent J'!o. I Shri Nawa\ Kishore
assailed the order of acquittal by filing criminal appeal in the High
Court and the High Court_ in its turn allowed the appeal and
D
reversed the order of acquittal passed by the learned Sessions Judge
and convicted the appellant. In the opinion of the High Court the
appeal filed by the appellant before the Sessions _Judge was in-
competent as no appeal could lie against the imposition of fine. It
also took the view under the provisions of section 401(5) of the
E Criminal Procedure Code it is permissible to treat a revision as an
\ appeal but not vice versa. It therefore, declined to treat the appeal
against the order of Magistrate as a revision. The High Court '
further expressed the opinion that the appellant may file a revision
if she so chooses which w-0uld be con~idered by the Court of
Admission and then if proper the same may be allowed. The
f appellant feeling aggrieved by the judgment of the High Court has
filed the present appeal with the special leave as stated earlier.

Shri Soli J. Sorabji appearing for the appellant has contended
that on the allegations made in the complaint no offence under
section 441 of the In.dian Penal Code is made out. In order to
G appreciate the contention it will be appropriate at this stage to read
sec! ion 441 of tlie Indian Penal Code :

"441. Criminal trespass :~Whoever enters into or
upon property in the possession of another with .intent to
H commit an offence or to intimidate, insult or annoy any
person in possession of such property, or having lawfully
¢ntered into or upon such property, unlawfully r~mains
KANWAL SOOD v. NAWAL KISHORB (Misra, J.) 875

there with intent thereby to intimate., insult or annoy any A
such person, or with intent to commit an offence, is said to
commit '~criminal trespass".

There has been local ameydment by U.P. Act 31of1961 for section
441 of the Indian · Penal Code, 1960, the following shall be
substituted_.:
B

"441. Criminal Trespass :-Whoever enters into or
upon property in possession of another with intent to
··commit· an offence or lo intimidiate, insult or annoy any
person in possession of such property, or, having lawftilly
enter.ed into or upon· such property, unlawfully remains
c
there with intent thereby to intimidiate, 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 inteniion of taking D
unauth6rised 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'. _ · E
. '
It may be pointed out that the appellant was allowed to occupy'
the premiSes in 1967 by Shri R.C. Sood. Under the terins of gift-
deed Shri Sood was entitled to remain in occupation of the premises
during his life time. He could as well grant, leave and license to F
the appellant to occupy the premises along with him. Now the
question arises about her staius· after the death of Shri R"C. Sood.
At the most, it can be said that after the death of Shri Sood the
leave and license granted by Shri Sood came to an end and if she·
stayed in ihe premises after the death of Shri Sood, her possession.
may be that of a trespasser but every. trespass does Bot aniount ·to.
criminal trespass within the meaning of. section 441 of the Iadian
Penal Code. In order to satisfy the conditions of section· 441 it
must be established th1t the appellant entered in' possession over
the premises with. int~nt to commit an offence. A bare persual. of,
the complaint ·filed by Respondent No. l makes it abundantly .clear
that there is absolutely no allegation about the intention of the.
appellant to commit any off~nce or. to intimidate,
- .... " . '
insult
- or annoy•
.
876 SUPRBMB COURT REPORTS 11983} 1 S.C.ll..

A any person in possession, as will be evident from three material
paragraphs which are quoted b_elow :

"2. That the late Shri R.C. Sood was occupying the said
premises in accordance with clause No. I of a gift-deed
. executed by him in favour of Shri Anand Mayee Sangh
B and after his demise ·the said premises had to be
delivered to Shri Anand Mayee Sangh.
3. That after the demise of Shri R.C. Sood, the accused
was repeatedly requested to voluntarily vacate and
\,. .. -
deliver the possession of the said premises to the
Sangh but ihe accused paid no heed and hence a notice
c dated 13.11.1973, copy of which enclosed, was sent
to the accused as required. by U.P. Amendment of
Section ·448 I.P.C. the said notiee was served upon
accused on 14.I I.73 as per postal A.D; receipt
D attached herewith.
4. That the accused was required to quit and vacate the
said premises by the 20th day of November, 1973 but
instead of vacating· the premises the accused has been
making unusual pretext and has thus committed an
offence under section 448 I. P .C."
E
The appellant may be fondly thinking that she had a right to
occupy the premises even after the death of Shri R.C. Sood. If a ..
suit for eviction is filed in Civil Court she might be in a position to
vindicate her right and justify. her possession. This is essentially a
civil matter which could be properly adjudicated upon by a
F competent Civil Court. To initiate criminal proceedings in the
circumstances appears to be only an abuse of tne process of the
Court·
We also do not agree with the view taken by the Court that
the appeal filed by the appellant before the Sessions Judge was
G incompetent. If the learned Magistrate had only awarded a sentence
of fine, in that case revision ~lone would be competent and not an
appeal but in the instant case the Magistrate not only awarded the
fine "of.Rs. 100 but also directed the appellant to vacate the premises
within two months from the date onhe order. This part of the
order presumably was passed under section 456 of the Criminal
H Procedure Code, and this made the order appealable and ihe High
Court has gone wrong in holding that appeal filed by the appellant
l>efore the Sessions Judge was pot maintainable.
I• • L < , ·r · · , ··- ··'
·
KANWAL SOOD v. NA WAL imiioae (Misra, i.) s77
There were certain other pleas taken by the resporidpnt before A
the High Court but it is not necessary to refer to those pleas in the
"view that we have 'taken that on -the complaint itself no offence
under section 448 of the Indian Penal Code is made out.

For the foregoing discussion, the appeal must succeed. ·It is
accordingly allowed. The judgment of the High Court dated 16th 8
December, 1980 is set aside and that of the Court of Sessions is
restored. · The bail bond if any" shall be cancelled.

S.R. Appeal allowed.
c