Bench:
S Malik
Appellant:
State Of U.P.
Respondent:
Raja Ram
Issue
Whether the words "in possession of another" in Section 441 of IPC would mean "in actual possession of another"?
Whether the accused's construction amounts to unauthorised construction to convict him under Section 441 of IPC?
Facts
- Raja Ram constructed a house over an area of 23' x 18' at a distance of 45 ft. 7 inches from the southern end of National Highway No. 2.
- According to the prosecution, the Public Works Department of the State gave notice to the accused pointing out that he was making the construction within the controlled area or within the boundaries of the national highway and, therefore, it was unauthorised.
- It is said that in spite of the notice the accused completed the construction.
- The accused pleaded not guilty. According to him, the house in question is outside the boundary of the Grand Trunk Road and stands on the land belonging to Gram Sabha, Bhairopur and the accused built the house with the permission of Gram Pradhan.
- He further alleged that in the past he was prosecuted regarding this very construction on complaints made by the P.W. D. twice, and therefore, the present complaint is liable to be dismissed.
- The learned Magistrate in his judgement came to the conclusion that the accused could not be convicted of an offence punishable under Section 447 of the Indian Penal Code because the complainant (the Public Works Department) was not in actual physical possession of the area encroached upon and with this finding, the complaint was dismissed.
- When the appeal first came up before another Bench of this Court in the year 1969, it was held (by its order dated August 11, 1970) that in order to constitute possession within the meaning of Section 441 of the Indian Penal Code, the complainant must be in actual physical possession of the property either by himself or through his wife, servant, agent, licensee or another person.
- Another appeal was filed before the Allahabad High Court to re-refer
Appellant's Contentions
- It was submitted that the words used in Section 441 of IPC are "in possession of another" and not "in actual possession of another".
- Therefore, in order to prove a person guilty under Section 441 of IPC, it is not necessary for the complainant to be in "actual" possession of the property
Respondent's Contentions
- The respondent pleaded not guilty in the case as his house lies outside the boundary of the Grant Trunk Road, and that he believed it to be belonging to the Gram Sabha Bhairopur.
- Accordingly, the accused asked due permission of the Gram Pradhan before constructing the house.
Relevant Paragraphs (Paragraph Numbers 13, 14, and 15 of the Original Judgement)
- According to Section 441 of IPC, a person is said to have committed the offence of 'criminal trespass' when he enters into or upon a property, which is in possession of another, with the intention of taking unauthorised possession or making unauthorised use of such property, and if the trespasser fails to withdraw from 'such property' or its possession or use even when he is called upon to do so by that another person by notice in writing duly served upon him, by the date specified in the notice.
- The important ingredient in this section is the presence of mala fide intention to take unauthorised possession of the property, and the query regarding the property being in actual possession is unnecessary because under Section 441, the same is presumed.
- But, more specifically, in this case, the substantial issue relates to the portion added by the State amendment. In such a circumstance, the only condition to prove the accused guilty is the intention. Here, the question of possession is irrelevant.
Judgement
The Allahabad High Court dismissed the appeal and upheld the previous order of acquitting the accused from the case. The Learned Judge observed that there was no mala fide intention on part of the accused to enter into possession of the land. According to Section 441 of IPC, 'intention of taking unauthorised possession or making unauthorised use of the land' is an essential requirement to convict a person thereunder. Furthermore, the Appellants also failed to prove that there was prior notice published revealing the details of the possession of the property, and also did not prove that the accused was aware of the property's details, in this regard, while constructing his house.
Coming to the question on the interpretation of the words "possession" under Section 441. The High Court said that according to the State amendment to the Section, the words "possession of the property" need not necessarily mean "actual possession" and would also include "constructive possession".
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