Case Note & Summary
The petitioners, accused nos. 1 and 2 in C.C. No. 13911/SS/2009 pending before the Metropolitan Magistrate, 65th Court at Andheri, filed a criminal writ petition under Article 227 of the Constitution challenging the order issuing process against them for offences under Sections 447, 504 read with Section 34 of the Indian Penal Code. The complaint was filed by respondent no. 1, who alleged that the petitioners and others entered his property and abused him. The Magistrate, after examining the complainant on oath under Section 200 CrPC, issued process against five accused, including the petitioners. The petitioners' revision before the Additional Sessions Judge was dismissed on the ground that a prima facie case for criminal trespass was made out. Aggrieved, the petitioners approached the High Court. The court examined the complaint and found that the allegations did not disclose the essential ingredients of criminal trespass under Section 441 IPC, as there was no averment that the entry was with intent to commit an offence or to intimidate, insult, or annoy the complainant. Similarly, the offence under Section 504 IPC was not made out as there was no intentional insult or provocation likely to cause breach of peace. The court held that the order issuing process was unsustainable and quashed the proceedings against the petitioners, allowing the writ petition.
Headnote
A) Criminal Law - Criminal Trespass - Section 447 IPC - Prima Facie Case - Complaint alleged that accused entered complainant's property and abused him, but failed to specify that the entry was with intent to commit an offence or intimidate - Held that essential ingredients of criminal trespass under Section 441 IPC were not made out, and process issued was liable to be quashed (Paras 7-10).
B) Criminal Law - Criminal Intimidation - Section 504 IPC - Ingredients - Complaint did not allege any intentional insult or provocation likely to cause breach of peace - Held that no prima facie case for offence under Section 504 IPC was disclosed (Para 10).
C) Criminal Procedure - Quashing of Process - Inherent Powers - High Court can interfere with order issuing process if no prima facie case is made out - Held that continuation of proceedings would be an abuse of process of court (Paras 11-12).
Issue of Consideration
Whether the order issuing process against the petitioners for offences under Sections 447, 504 read with Section 34 IPC was legally sustainable in the absence of a prima facie case.
Final Decision
The High Court allowed the writ petition, quashed the order issuing process against the petitioners, and dismissed the complaint against them.
Law Points
- Criminal trespass
- Section 447 IPC
- Section 504 IPC
- Section 34 IPC
- Prima facie case
- Quashing of criminal proceedings
- Revision against process
- Code of Criminal Procedure
- 1973
- Section 200 CrPC
Case Details
2013 LawText (BOM) (08) 108
Criminal Writ Petition No. 1704 of 2012
Mr. Jatin Shah i/b Mr. Mohan R.P. Rao for petitioners, Mr. P.R. Arjunwadkar for respondent no.1, Mrs. G.P. Mulekar, APP for State
Ms. Sumitra Hiralal Saklikar and Sanjiv Vithal Samant
Hemant Radhakrishna Sapale and State of Maharashtra
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Nature of Litigation
Criminal writ petition under Article 227 of the Constitution challenging the order issuing process in a private complaint for offences under Sections 447, 504 read with Section 34 IPC.
Remedy Sought
Quashing of the order issuing process against the petitioners and dismissal of the complaint.
Filing Reason
The petitioners were aggrieved by the order of the Magistrate issuing process against them and the dismissal of their revision by the Additional Sessions Judge.
Previous Decisions
The Magistrate issued process against the petitioners and three others after examining the complainant on oath. The Additional Sessions Judge dismissed the revision, holding that a prima facie case for criminal trespass was made out.
Issues
Whether the allegations in the complaint disclose the essential ingredients of criminal trespass under Section 441 IPC?
Whether the allegations in the complaint disclose the essential ingredients of criminal intimidation under Section 504 IPC?
Whether the order issuing process against the petitioners is legally sustainable?
Submissions/Arguments
The petitioners argued that the complaint does not make out a prima facie case for criminal trespass as there is no allegation that the entry was with intent to commit an offence or to intimidate, insult, or annoy.
The petitioners argued that the offence under Section 504 IPC is not made out as there is no intentional insult or provocation likely to cause breach of peace.
The respondent no.1 argued that a prima facie case was made out and the revisional court correctly dismissed the revision.
Ratio Decidendi
For an offence under Section 447 IPC read with Section 441 IPC, the prosecution must establish that the entry was with intent to commit an offence or to intimidate, insult, or annoy. Mere entry and abuse without such intent does not constitute criminal trespass. Similarly, for Section 504 IPC, intentional insult or provocation likely to cause breach of peace must be alleged. In the absence of such allegations, the order issuing process is unsustainable and liable to be quashed.
Judgment Excerpts
The complainant has not stated that the entry of the accused was with an intent to commit an offence or to intimidate, insult or annoy the complainant.
The allegations in the complaint do not make out a prima facie case for the offence of criminal trespass.
The order issuing process against the petitioners is unsustainable and is liable to be quashed.
Procedural History
The respondent no.1 filed a private complaint before the Metropolitan Magistrate, 65th Court at Andheri, which was registered as C.C. No. 13911/SS/2009. The Magistrate examined the complainant on oath under Section 200 CrPC and issued process against the petitioners and three others for offences under Sections 447, 504 read with Section 34 IPC. The petitioners filed a revision before the Additional Sessions Judge, which was dismissed. The petitioners then filed the present criminal writ petition under Article 227 of the Constitution before the Bombay High Court.
Acts & Sections
- Indian Penal Code, 1860 (IPC): 447, 504, 34, 441
- Code of Criminal Procedure, 1973 (CrPC): 200
