Calcutta High Court: While deciding a case related to quashing of criminal proceeding, Rai Chattopadhyay*, J., held that of authorised Bank employee can enter in secured property premises for taking possession and the same would not come within the purview of the description of “house trespass” as provided under S. 442 of the Penal Code, 1860.
Factual Matrix
In the instant matter, the petitioners are the employees of Housing Development Finance Corporation Limited (HDFC Ltd.) and working as “Assistant Manager – Recoveries” with the corporation. On 14-01-2015, a complaint was filed against the petitioners by the opposite party No. 2 alleging the commission of house trespass (S. 448 of IPC), criminal intimidation (S. 506 of IPC) and abetment to such offence, in furtherance of their common intention and a police case was started against them. The criminal proceeding under Ss. 448, 506, 114 and 34 of IPC is pending before the Court Additional Chief Judicial Magistrate, Alipore. Aggrieved by the impugned criminal proceedings initiated against them, the petitioners preferred a revision before the Court to quash the impugned criminal proceedings against them.
Parties’ Contentions
The petitioners contended that the criminal proceedings initiated against them was manifestly attended with malafide, maliciously instituted with an ulterior motive of wreaking vengeance and private and personal grudge, which would be deprecatory in accordance with law. The petitioners further contended that they have acted in order to discharge their duty as the responsible and authorised officer of the company should do as per the statutory provisions.
The petitioners contended that the landlord of the opposite party No. 2 is a borrower with the employer of the petitioners and is a defaulter of loan. The petitioners contended that the occupation of the opposite party No. 2 under a tenancy is categorised as the “secured asset” in respect of which the company has created security interest. The petitioners further contended that the only remedy available to the borrower is an appeal under the provisions of the SERFAESI Act, 2002 and not a criminal proceeding against the petitioners.
The opposite party No. 2 contended that the petitioners exercised intimidation, violence and force to evict and dislodge her from tenanted premises, moreover, they also trespassed into her tenanted premises and in furtherance of their common intention executed threat and intimidation. The opposite party No. 2 contended that she is lawfully occupying the premises and is apprehensive about being unlawfully and forcefully dislodged from the same premises.
Court’s Observation
In order to determine if any cognizable case is made against the petitioners, the Court looked into the cardinal principles of the criminal jurisprudence and discussed doctrine of actus non facit reum nisi men sit rea, in State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722 and definition of offence, intention, injury, wrongful loss, wrongful gain under IPC.
The Court observed that to hold the petitioners criminally liable of a cognizable offence; the petitioners should have possessed the intention and knowledge of their trespassing any property of others and intimidating the occupiers therein, and also, intimidating them with the same intention and knowledge. The Court opined that it is clear that the property in question was the secured asset with the bank and the bank has already exhausted legal formalities for taking possession of the same, therefore, it cannot be said that the petitioners have made an unlawful entry.
Relying on Standard Chartered Bank v. V. Nobel Kumar, (2013) 9 SCC 620, the Court accepted the contentions of the petitioners that the only remedy available to the borrower is an appeal under the provisions of the SERFAESI Act, 2002 and not a criminal proceeding against the petitioners.
The Court opined that from the facts and circumstances of the case it appears that the petitioner, an employee of the bank who is discharging his bona fide duty, has entered the premises of the secured property to exercise the power vested on him by law and in absence of any actus reus or mens rea on his part, he cannot be exposed to criminal liability in order to discharge his function.
“…the petitioner who in discharge of his bona fide duty, being the employee of the bank, which is admittedly a secured creditor, has entered the premises of the secured asset /property in exercise of the power vested on him by law, cannot be entangled with the liability of criminality in absence of any actus reus or mens rea on their part, in discharging that function, as alleged against him in this case.”
Court’s Decision
While quashing the impugned criminal proceeding against the petitioners, the Court held that neither the ingredients of the alleged offence are available, nor a case of cognizable offence can be made out against the petitioners.
[Dipta Dutta v. State of W.B., 2023 SCC OnLine Cal 386, decided on 23-02-2022]
*Judgment by Justice Rai Chattopadhyay
Advocates who appeared in this case :
Mr. Ayan Bhattacherjee and Ms. Nafisa Yasmin, Counsel for the Petitioners;
Ms. Faria Hossain and Mr. Anand Keshari, Counsel for the Respondent/State.
