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This particular decision is held by the High Court Of Karnataka through the single bench of Justice M Naga Prasanna in the case Shivaswamy & Others v. The State Of Karnataka &  ANR.

Facts

In this case the respondent advocate is the complainant . On 01/08/2018 the complainant registered a complaint before the kodigehalli police station  that on 13/01/2018 at about 9 a.m. the petitioner had allegedly trespassed into their house, threatened her tenants to vacate the house, and caused loss by disconnecting electricity. Based upon the said complaint, a criminal case came to be registered in crime no. 163 of 2018 for offence punishable under Sections  143, 427, 447, 448, 506 and 149 of the IPC.

Orders and Judgements

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 or destruction of property also cannot be alleged, as they are inseparable, in the peculiar facts of this case.”

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Judgement reviewed by- Mohammed Shoaib

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