S.C. Parija, J.
1. Whether a tenant whose tenancy has come to an end by efflux of time on expiry of his tenancy or has been terminated by notice and who continues in possession of the tenanted premises can be said to have committed the offence of criminal trespass under Section 441 I.P.C. (Orissa Amendment). This is the moot question which needs to be determined in the present case where cognizance has been taken against the petitioner under Sections 447/448 I.P.C. which is under challenge in this application under Section 482 Cr.P.C.
2. The case of the petitioner (accused) is that he was a tenant under the opposite party (complainant) of the premises consisting of four rooms situated on plot No. 1687 under Khata No. 38 in village Sundergram, measuring an area of Ac. 0.2.5 kadi. The said tenanted premises was given on rent to the petitioner on a monthly rent of Rs. 5007- and the petitioner was occupying the said premises as a tenant, on payment of monthly rent.
3. In July, 1998, the wife of the petitioner entered into a negotiation with the opposite party (complainant) for purchase of the tenanted premises and accordingly an Agreement was executed between them on 25.7.1998 for sale of the tenanted premises for a consideration of Rs. 70,000/-, out of which the complainant received Rs. 50,0007- in two instalments and the balance consideration amount of Rs. 20,000/-was required to be paid by the end of June, 1999. In the said Agreement, it was agreed upon between the parties that till full payment of the consideration amount, the petitioner and his wife would continue to pay rent to the complainant and that on payment of the full consideration amount necessary Sale Deed would be executed by the complainant (opposite party) in favour of the wife of the petitioner.
4. It is the case of the petitioner that the opposite party (complainant) refused to receive the balance consideration amount of Rs. 20,000/- and demanded a further sum of Rs. 20,000/- as a condition precedent for executing the Sale Deed. In view of the refusal of the complainant to accept the balance consideration amount and execute the Sale Deed as per terms of Agreement dated 25.7.1998, the wife of the petitioner filed Title Suit No. 109 of 1999 before the Civil Judge (Sr. Division), llnd Court, Cuttack along with Misc. Case No. 195 of 1999 under Order 39 Rules 1 and 2 C.P.C. for grant of ad interim injunction against the complainant, restraining him to alienate the suit property in favour of any stranger as well as from dispossessing the plaintiff from the suit land. The learned Civil Judge issued ad interim injunction against the present complainant restraining him from alienating the suit property in favour of a third person and from disturbing the possession of the present petitioner and his wife over the suit land.
5. The petitioner alleges that in spite of pendency of the civil suit, in which the complainant has already entered appearance and filed his written statement, he had filed the complaint registered as I.C.C. No. 5 of 2001 before the J.M.F.C. (R), Cuttack and the said complaint petition was sent by the learned Magistrate to Govindpur Police Station to treat it as F.I.R. under Section 156(3) Cr.P.C. and the police after investigation submitted charge sheet under Sections 447 and 448 I.P.C. in G.R. Case No. 214 of 2001. The learned J.M.F.C. (R), Cuttack vide order dated 7.12.2001 has taken cognizance of offence under Sections 447/448 I.P.C. against the petitioner and has directed issue of N.B.W., which is under challenge in this application under Section 482 Cr.P.C.
6. From the complaint petition, it appears that the complainant admits the fact of tenancy and that the petitioner was a tenant on payment of monthly rent of Rs. 500/- in respect of the tenanted premises and also the fact that due to conflict regarding payment of rent and misuse of property the complainant had terminated the tenancy by issue of notice under Section 106 of the Transfer of Property Act (for short T.P. Act'). The complainant also admits regarding pendency of the civil suit bearing T.S No. 109 of 1999 before the Civil Judge (Sr. Division), llnd Court, Cuttack, between the parties and grant of ad interim injunction against the complainant, in respect of the tenanted premises.
7. In the case of Akapati Bhaskar Rao v. Trinath Sahu and Anr. reported in 2001 (I) OLR 502 a Division Bench of this Court considered the scope and ambit of Section 441 I.P.C. as amended by Orissa Act 22 of 1986 which reads as follows :
441. 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 lawfully entered into or upon such property, remains there with the intention of taking unauthorised possession or making unauthorised use of such property and 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 on him, is said to commit criminal trespass.
8. This Court in the said case of Akapati Bhaskar Rao (supra) considered the rights and liabilities of tenant vis-a-vis a landlord which flows from the provisions of T.P. Act and came to hold as follows:
In consonance with the T.P. Act after determination of lease by virtue of a notice as stated above, if the tenant does not suo motu vacate the premises, the landlord is to take recourse to due process of law to evict the tenant. A tenant who continues to remain in possession of the premises after expiry of the term and/or after determination of the tenancy, is nomenclatured as 'tenant holding over' or as 'tenant on sufferance'. There is a distinction between the tenant continuing in possession after determination of the term of the lease with the consent of the landlord and the tenant doing so without his consent. The former is a 'tenant on sufferance' and the latter is a 'tenant holding over' or 'tenant on will'. The moot point which needs to be determined in the present case is, what is the nature of possession of a tenant holding over or a tenant on sufferance. After determination of the lease the tenant has no right to continue in possession. He is bound to put the landlord in possession of the property as stipulated in Section 108(a) of the T.P. Act. Although he may not have a right to continue in possession after termination of the tenancy, his possession is juridical and the same is protected by the statute. He can be evicted only in due process of law. Law makes a distinction between a 'trespasser' and 'erstwhile tenant' whereas trespasser's possession is. never juridical and never protected by law, the possession of an erstwhile tenant is juridical and is protected by law.
To consider any action to be an offence, the basic ingredient is mens rea. In other words no crime is committed if the mind of the person committing the offence in question is innocent. It is said that intent and act must both concur to constitute a crime (actus non facit reum, nisi mens sit rea).
9. The third part of the amended provisions of Section 441 reads : having lawfully entered remains there with the intention of taking unauthorised possession or making unauthorised use of the property. Thus, simply remaining in possession would not be considered as an offence under Section 441, I.P.C., unless intention of the occupier to take unauthorised possession or making unauthorised use is asserted and proved. So far as unauthorised possession is concerned, according to the provisions of T.P. Act and Specific Relief Act, the possession of a lessee whose lease has been determined is protected by law and he would be considered as a tenant holding over or tenant on sufferance and his possession is juridical in nature. So far as making unauthorised use is concerned, if a tenant is using a premises for a particular purpose during the lease period and continues to use the premises for the same purpose after determination, it cannot be said to be making unauthorised use, specially in view of the fact that the purpose of use was authorised and was accepted by the landlord and all of a sudden the same use cannot be said to be unauthorised. But there may be cases where after determination of the lease, a tenant used the premises for some other purpose than for which he was permitted to use by the landlord. In such cases, it may be considered as unauthorised use. Where continuance of occupation is in assertion of a right, the tenant could not be held guilty under this provision. To constitute the essence of the offence of criminal trespass under Section 441 (substituted) the basic ingredient is the intention and not simple occupation after service of notice to vacate. In all these cases, the bona tide claim advanced by the tenant has to be carefully considered before taking cognizance.
Rights of a tenant covered under a 'lease' and the rights of a person who was allowed to possess the property or was in permissive possession (Licensee) or not one and the same. The cardinal distinction between the tenant under the lease and licensee is that in case of a 'tenant' under the lease, there is transfer of interest whereas in the case of 'licensee' or a person allowed to remain in possession, there is no transfer of interest though under the law he acquires a right to occupy the premises for certain period. In view of the fact that the licensee remains in possession by virtue of a permission, without such permission, his possession would become unlawful and provisions of Section 441, IPC (substituted) would be squarely applicable. The provisions of Section 441 may also be applicable to cases where the lease-deed specifically contains a clause stipulating that after expiry of the period of lease, the tenant would suo motu vacate the premises without any demeanour.
10. On the basis of above finding, this Court came to the following conclusion:
On the basis of the discussions made in the preceding paragraphs, we are of the opinion that the rigours of Section 441, IPC as amended by the Orissa Act 22 of the 1986 shall not be applicable to the following cases:
(i) Statutory tenants whose tenancy is governed by any statute.
(They are protected by tenancy laws like, Public Premises Eviction Act, etc.)
(ii) Tenant who has entered into possession by virtue of a lease.
(Rights of such tenant is governed under the provisions of the Transfer of Property Act and the Specific Relief Act and he acquires a right of possession. After determination of tenancy by notice, he would become 'Tenant holding over' 'Tenant on sufferance' or 'Tenant at will' as the case may be. His possession being juridical, is protected. He can be evicted only in due process of law. The possession of such tenant cannot be equated with that of tresspassers.)
(iii) Person who has entered into possession by virtue of some covenant like, agreement to sell, will etc. and/or put forth a genuine right over the property possessed.
(if a person claims a right of title coupled with possession, till the dispute is adjudicated, his possession cannot be conclusively said to be that of a trespasser and his right to possess would be subject to the result of the suit or legal proceeding.
11. Applying the aforesaid principles of law to the facts of the instant case, as the petitioner (accused) had admittedly entered into the tenanted premises as a tenant on payment of monthly rent, the provisions of Section 441 I.P.C. (Orissa Amendment) cannot be made applicable as the same cannot act as a weapon in the hands of the landlord (complainant) to harass a tenant whose tenancy has been determined by issue of notice. Moreover, in view of the pendency of the civil suit between the parties for specific performance of contract in respect of the tenanted premises, the complainant cannot be permitted to utilise the criminal Court as a weapon of harassment or prosecution. Similarly, the offence of 'house trespass' as defined in Section 442 I.P.C., cannot be made applicable to the facts of the present case.
It has been observed by the Supreme Court in the case of State of Karnataka v. L. Muniswamy and Ors. reported in : 1977CriLJ1125 that the wholesome power under Section 482 Cr.P.C. entitles the High Court to quash a proceeding, when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters to achieve a salutary public purpose. A Court proceeding ought not to be permitted to degenerate into a weapon of harassment or prosecution. This principle of law has been followed in a large number of subsequent cases.
12. In the case of Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors. reported in : 1988CriLJ853 the Supreme Court observed as under :
The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.
13. In a recent judgment of the Supreme Court in the case of Indian Oil Corporation v. NEPC India Ltd. and Ors. reported in : AIR2006SC2780 , the Supreme Court has again cautioned about a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/ creditors. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is likelihood of imminent settlement. The Court further observed that any effort to settle 2005 (I) OLR (SC) 51 civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. The Supreme Court proceeded to observe as under:
xxxxxx While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such mis-conceived criminal proceedings in accordance with law. One positive step that can be taken by the Courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. xxx xxx
14. The Supreme Court in the case of M/s. Zandu Pharmaceutical Works Ltd. and Ors. v. Mohd. Sharaful Haque and Ors. reported in : 2005CriLJ92 , observed as follows:
xxxxx Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceeding would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
15. In view of the discussions made above, I feel that continuance of the criminal proceeding against the present petitioner under Sections 447/448 I.P.C. in G.R. Case No. 214 of 2001 pending in the Court of J.M.F.C.(R), Cuttack is an abuse of process of Court and accordingly the same is quashed.
The Criminal Misc. Case is accordingly allowed.