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No offence of criminal trespass if the complainant is not in possession of property: Karnataka High Court

The Karnataka High Court has upheld that if the complainant does not possess the property, there is no crime of criminal trespass into a property that does not belong to the complainant through A single judge bench of Justice M Nagaprasanna in the case of SHIVASWAMY & Others v. THE STATE OF KARNATAKA & ANR (CRIMINAL PETITION No.2776 OF 2022)

FACTS OF THE CASE:

The complainant was the second respondent. On 01-08-2018, the complainant filed a complaint with the Kodigehalli Police Station alleging that on 13-01-2018, at approximately 9:00 a.m., the petitioners/accused trespassed into her residence, threatened her tenants to leave, and caused the loss by disconnecting electricity. It is also claimed that the accused have trespassed into other people’s homes. Based on the complaint as mentioned above, a criminal case was filed in Crime No.163 of 2018 for offences punishable under Sections 143, 427, 447, 448, 506, and 149 of the IPC.

The learned counsel for the petitioners argued that the issue in the case at hand is purely civil, and that the complainant is attempting to arm-twist the petitioners for having lost all of the property litigations. It was also suggested that. If the trespass, intimidation, or other alleged offence occurred on January 13, 2018, nothing prevented the complainant from registering the crime immediately, but it is only registered after 7 months. This fact alone would be sufficient to establish mala fide action on the part of the complainant in filing the complaint.

On the other hand, the learned counsel for the second respondent/complainant refuted the submissions to contend that the complainant owns the property and that the petitioners attempted to trespass into the property and destroyed the belongings of all the persons who are on rent in the complainant’s property. The complaint was registered after seven months due to following up in the civil proceedings between the parties.

JUDGEMENT:

The bench began by noting that the Bangalore Development Authority purchased the land in question to benefit the NTI Housing Cooperative Society. The petitioner had purchased the stated property from the Society through a registered sale deed and had all revenue records transformed into his name. While the complaint opposed the acquisition procedures, the High Court dismissed them in February 2022. In this context, the Court observed that if the complainant does not have possession, she cannot claim that the accused have trespassed on her property.

The bench also held that criminal trespass, as defined in Section 441 of the IPC, can be committed only when a person enters into or upon any property in possession of another with the intent to commit an offence or intimidate, insult, or annoy any person in possession of such property.

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

In light of the foregoing, the petition was allowed.

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JUDGEMENT REVIEWED BY REETI SHETTY

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