CRIMINAL TRESPASS COMPLAINT CAN’T BE MADE IF PROPERTY IS NOT IN POSSESSION OF COMPLAINANT: KARNATAKA HIGH COURT

The Karnataka High Court in the case Shivaswamy & Others v. The State Of Karnataka & Anr observed and held that a complaint of criminal trespass cannot be made if the property on which the accused is alleged to have trespassed, the property is not in the possession of the complainant.

The Single judge bench comprising of Justice M Nagaprasanna made the observations and stated while quashing a criminal complaint filed against Shivaswamy and others under sections 143, Section 427, Section 447, Section 448, Section 506 and Section 149 of the Indian Penal Code, 1860.

The present case, the case at hand is for the offence under Section 447 of the IPC, for which the most relevant factor would be exclusive possession of the property, on which the accused is alleged to have trespassed and if the possession of the property itself is in doubt, driving home the offences beyond all reasonable doubt, would without doubt become doubtful. If further proceedings on such premises are permitted to continue against the petitioners, notwithstanding the fact that charge sheet has been filed by the Police, would become an abuse of the process of law and which would result in miscarriage of justice.

One PC Leelavathi, filled the complaint and as per the complaint filed the petitioners or accused trespassed into her house and threatened her tenants to vacate the house, caused loss by disconnecting electricity. Further, it was alleged that the accused even have trespassed into houses belonging to others.

On the other hand, the petitioners submitted that the issue in the instant case is purely civil in nature and that the complainant is trying to arm twist the petitioners concerning the property, for having lost all the litigations. However, it was contended that against the alleged incident was lodged after a delay of about seven months.

Firstly, it was noticed by the bench that land in question was acquired by the Bangalore Development Authority for the benefit of NTI Housing Co-operative Society, by way of a registered sale deed, the petitioner had purchased the said property from the Society and later got all the revenue records mutated into his name. While, the acquisition proceedings are challenged by the complainant and in February 2022, the same came to be dismissed by the High Court.

It was observed by the court that if possession is not with the complainant, she can hardly contend that the accused have trespassed into the property of the complainant.

The bench observed that section 447 which deals with criminal trespass hinges upon the complainant being in possession of the property and her possession in the case at hand in the aforesaid writ petition is determined by this Court while observing that the BDA had already acquired the property for a particular purpose in the year 1986 and the complainant being in possession was not accepted. Against each other, civil cases are also pending Therefore, if the complainant is not in possession of the property, there can be no allegation of criminal trespass into such property, in which the accused themselves are in possession of such property.

It was also opined by the bench that the criminal trespass as obtaining under Section 447 of the IPC and defined under Section 441 of the IPC can be committed only when a person enters into or upon any property and the said property is in possession of another person with intent to intimidate or commit an offence, to insult or annoy any person, who is in possession of such property.

Further, the bench noted that there is no criminal trespass into the property, causing damage under Section 427 of the IPC, by way of mischief of destruction of property as they are inseparable and cannot be alleged in the peculiar facts of this case.

Accordingly, the petition is allowed.

The present case at hand is for the offence under Section 447 of the IPC, for which the most relevant factor would be exclusive possession of the property, on which the accused is alleged to have trespassed and if the possession of the property itself is in doubt, driving home the offences beyond all reasonable doubt, would become doubtful.