Del HC | Charge of criminal trespass under S. 447 IPC by person claiming to be tenant not maintainable in absence of proof of tenancy

Delhi High Court: Sanjeev Sachdeva, J., allowed a petition filed by the allottee of the subject shop who was charged with an offence punishable under Section 447 (punishment for criminal trespass) IPC, and quashed the order whereby the charge was farmed against him.

The petitioner was the allottee of the subject shop. It was alleged by the respondent that the petitioner had agreed to rent out the shop to him and had demanded a sum of Rs 50,000 to be paid in advance, after the payment of which the petitioner handed over the keys to him. The respondent, in his complaint filed under Section 200 CrPC, alleged that the petitioner, however, did not remove his articles from the shop with malafide intentions. And on 27-02-2011, while the complainant was getting the woodwork done, the petitioner broke the lock and trespassed into the shop.

Aditya Madan, Advocate for the petitioner contended that the trial court erred in framing the charge and not appreciating there was the allottee of and in possession of the shop. Per contra, Subodh Kumar Pathak, Advocate for the respondent supported the impugned order.

The High Court noted that admittedly, the petitioner was the allottee of the shop. The respondent did not produce any evidence to corroborate that any tenancy was created in his favour or the possession was handed over to him. It was observed: Section 447 is punishment for Criminal Trespass which is defined under Section 441 to be committed when a person 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. The impugned order clearly is erroneous in as much as the Trial Court has framed the charge on the presumption that the complainant was in possession of the shop at that time. As there is no material to show that possession was parted with by the petitioner or handed over to the complainant, petitioner could not have been charged with the offence under Section 447 IPC.”

In such view of the matter, the petition was allowed and the charge framed against the petitioner was quashed. [Jagdish Kapila v. Raj Kumar, 2019 SCC OnLine Del 8617, decided on 21-05-2019]

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