Judgment:
ORDER
1. By consent of both sides, the matter has been taken up for final hearing. Petition has been filed seeking a direction to call for the proceedings in C.C.No.2731 of 2010 on the file of the learned XV Metropolitan Magistrate Court, George Town, Chennai and quash the same.
2. Petitioners are the accused in a private complaint given by the respondent before the learned XV M.M, George Town, Chennai. The offence alleged by the complainant is a criminal trespass. The facts leading to filing of such complaint is as follows:
3. The complainant is the owner of 10 grounds of land with superstructure which was the subject matter in a compromise decree in C.S.No.947 of 1990. Out of the said extent, sale to an extent of one ground was ordered under Sec.9 of the City Tenants Protection Act in O.S.No.6182 of 1992 by the 8th Asst. Judge, City Civil Court, Madras. The sale was effected and possession was delivered to the 1st petitioner through a sale deed dated 22.2.1995. In the meanwhile, eviction was ordered to another extent of land and building regarding another tenant which is adjacent to the land sold to the petitioners. With the aid of the police, possession was taken as per the proceedings of EP No.143 to 146 of 2009. However, it was noticed that the petitioner have occupied 3840 sq.ft over and above the actual extent sold to them and thus they have trespassed into the property and have blocked the way of the complainant to the rest of his properties.
4. A complaint was given to the Inspector of Police, Washermanpet Police. However, the Inspector has not registered a case and therefore, the present private complaint has been filed.
5. The learned Magistrate proceeded under Sec.200 of Cr.P.C and took cognizance of the case in C.C.No.2731 of 2010. Aggrieved by taking cognizance, the petitioners are before this court to quash the entire proceedings.
6. According to the petitioners, they are in legal possession of the land since 1978 with valid documents and they never trespassed into the property. It is also contended that the complaint given to the police was enquired and closed on the ground that it is a civil dispute. It is also contended that instead of approaching the civil court for recovery of possession or removal of obstruction, a private complaint has been given only to harass the petitioner and the allegation would not reveal cognizance of any offence.
7. Mr. S. Ashok Kumar, the learned senior counsel who appeared for Mr.Muniruddin Sheriff, for petitioners, would submit that the perusal of the complaint itself would show that it is a civil dispute and no offence has been made out. The learned senior counsel would submit that the petitioners would claim that they are in possession under various valid documents which has to be challenged only in a civil forum and pendency of private complaint is abuse of process of law.
8. The learned counsel relied on a decision reported in AIR 1975 SC 1674 (Puran Singh and others vs The State of Punjab)
9. The learned counsel also relied on a decision reported in AIR 1968 SC 702(1) (Munshi Ram and others vs Delhi Administration)
10. On the other hand Mr.B. Kumar, the learned senior counsel for Mr.R. Loganathan, for respondent, would submit that a clear averment has been made in the complaint that the petitioners have trespassed into the property and occupied a portion more than what they are entitled to.
11. The learned senior counsel submitted that the learned Magistrate has satisfied himself that there is prima facie a case and has taken cognizance and only during the course of trial, the offence can be proved by the respondent. The learned senior counsel submitted that at this stage, this court cannot conduct rowing enquiry and decide the case.
12. The learned senior counsel relied on a decision reported in 1977 MLJ Crl 300 (Dharmaraj and others vs Thillaimathan and others)
13. Heard and perused the materials available on record.
14. Admittedly, the petitioner earlier has given a complaint dated 5.10.2009 to the Inspector of Police, Washermenpet Police Station. However, no case has been registered. Therefore he has given the present private complaint. The complainant would state that he had acquired the ownership through a compromise decree of this court and however, one ground of land was sold to the petitioners on a direction given by the civil court and rest of the portion have been taken possession through execution proceedings .
15. The specific averment made in the complaint is that the complainant noticed that the petitioners are in possession of 3840 sq.ft which they claimed as their own. It is further alleged that the petitioners have trespassed in to the properties in the possession of the complainant and when asked about, they were talking indifferently and threatening the life and property of the complainant. The complaint also details the various documents relied on by the complainant viz., the compromise decree , the sale deed in favour of the 1st petitioner, the plan and the rough sketch showing the trespass.
16. The petitioners relied on the following judgements. In AIR 1968 SC 702(1) (Munshi Ram and others vs Delhi Administration), the Apex Court has held as follows: "It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law he is entitled to defend his possession even against the rightful owner. But stray or even intermittent acts of trespass do not give such a right against the true owner. The possession, which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficient long period and acquiesced in by the true owner and casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter or reinstate himself provided the does not use more force than necessary. Such entry will be reviewed only as a resistance to its intrusion upon possession which has never been lost. Such entry will be viewed only as a residence to an intrusion upon possession to a stray Act of trespass. A possession which has not matured into settled possession, constitute an unlawful assembly, giving rights to the true owner, though not in actual possession at the time to remove the obstruction even by using necessary force.
17. In AIR 1975 SC 1674 (Puran Singh and others vs The State of Punjab) , the Apex Court has held as follows: "Thus in our opinion the nature of possession in such cases which may entitle a trespasser to exercise the right of private defence of property and person should contain the following attributes: i) that the trespasser must be in actual physical possession of the property over a sufficiently long period"
18. According to the petitioners, they are in settled possession for long period under valid documents and they are also entitled to the right of private defence of their possession.
19. The learned senior counsel for the respondent strongly relied on a decision reported in 1977 MLJ Crl 300 (Dharmaraj and others vs Thillaimathan and others), wherein this court has held that in cases of offence under Sec.441 of IPC, the ultimate question is that whether the accused committed an offence of trespass with dominant intention to intimidate, insult or annoy or whether there was at least a fair pretence of right or colour of legal right, if not a bonafide claim of right.
20. Sec.441 IPC reads as follows:
441. Criminal trespass:
Whoever enters into or upon property in the 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,
21. Therefore, the intention to commit an offence or to intimidate, insult or annoy the person in possession of the property is an essential ingredient. The section pre-supposes the possession of the property of another person who is the lawful owner.
22. Even according to the complainant, the petitioners are in possession to the extent mentioned in the sale deed dated 22.2.1995. Even prior to the sale deed, they have claimed benefit under Sec.9 of the City Tenants Protection act for their actual possession. The complainant has taken possession only on 19.6.2008 in pursuant to the orders passed in EP No.143 to 145 of 2008. It is only thereafter, he had noticed that the petitioners are in possession of more extent than what they are entitled to.
23. Initially complaint was given only on 5.10.2009. Admittedly the petitioners are in possession even prior to 1995 or the complainant had noticed such trespass only in 2008. Therefore, it cannot be said that the petitioners have committed the offence of trespass with dominant intention to intimidate or insult the complainant. The dispute raised by the respondent is purely of civil nature even assuming the facts stated by him to be substantially correct. The only course left to the complainant is to recover the possession through due process of law.
24. It is a case of more of civil in nature than the criminality attached thereto. In Moosa Ahmed vs The Inspector of Police, reported in 2010 2 CTC 153, , the learned Single Judge of this court had quashed a criminal proceedings on the ground that when a complaint is driven by malafides and matter in issue is civil in nature the court can exercise its power under Sec.482 Cr.P.C.
25. Therefore, I am of the considered view that the continuance of the proceedings in the private complaint is an harassment and abuse of process of law.
26. In the result, the criminal original petition is allowed and the proceedings in C.C.No.2731 of 2010 on the file of the learned XV Metropolitan Magistrate Court, George Town, Chennai is hereby quashed.