Criminal Trespass Complaint Can't Be Made If Property Is Not In Possession Of Complainant: Karnataka High Court

A single judge bench of Justice M Nagaprasanna made the observation while quashing a complaint filed against Shivaswamy and others under sections 143, 427, 447, 448, 506 and 149 of the Indian Penal Code. The bench said,

"The case at hand is for 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...If the possession of the property itself is in doubt, driving home the offences beyond all reasonable doubt, would without doubt become doubtful. On such a premise, if further proceedings 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 result in miscarriage of justice."

As per the complainant filed by one PC Leelavathi, the petitioners/accused trespassed into her house, threatened her tenants to vacate the house, caused loss by disconnecting electricity. It was further alleged that the accused even have trespassed into houses belonging to others.

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

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

In this backdrop, the Court observed that if possession is not with the complainant, she can hardly contend that the accused have trespassed into the property of the complainant.

"Section 447 which deals with criminal trespass hinges upon the complainant being in possession of the property...Her possession in the case at hand is determined by this Court in the aforesaid writ petition 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. Civil cases are also pending against each other. 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."

The bench also opined, "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, which is in possession of another with intent to commit an offence or intimidate, insult or annoy any person in possession of such property."

It added, "If there is no criminal trespass into the property, causing damage under Section 427 of the IPC, by way of mischief of destruction of property also cannot be alleged, as they are inseparable, in the peculiar facts of this case."

Accordingly, it allowed the petition.

Case Title: SHIVASWAMY & Others v. THE STATE OF KARNATAKA & ANR

Case No: CRIMINAL PETITION No.2776 OF 2022

Citation: 2022 LiveLaw (Kar) 257

Date of Order: 08TH DAY OF JULY, 2022

Appearance: Advocate NITIN RAMESH for petitioners; HCGP K.P.YASHODHA, FOR R1; Advocate SAMPAT ANAND SHETTY for R2.

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