A complaint of criminal trespass made by a person not having lawful possession of the property is not maintainable in law, the High Court of Karnataka has said.
Observing that Section 447 (criminal trespass) of the Indian Penal Code (IPC) as defined under Section 441 of the IPC is an interplay between a civil right and a crime, the court said that Section 447 hinges upon the complainant being in possession of the property.
Justice M. Nagaprasanna made these observations while allowing a petition filed by Shivaswamy and four others questioning the criminal proceedings initiated against them based on a complaint lodged by one P.C. Leelavathi. She had alleged that they had trespassed and damaged properties owned by her.
The court, from the records, found that the property, which the complainant claimed belonged to her, was acquired by the Bangalore Development Authority (BDA) in favour of NTI Housing Cooperative Society in 1980s. And the petitioners had purchased the sites formed on the properties through the society during 2013.
It was also found from the records that the High Court had upheld the acquisition in favour of the society and the possession of the properties, situated in survey number 11 of Kodigehalli village, were handed over to the society in 2003 by the BDA.
If possession is not with the complainant, she can hardly contend that the accused have trespassed the property of the complainant, the court said while pointing out that there can be no allegation of criminal trespass into such property, in which accused themselves are in possession.
On such a premise, if further proceedings are permitted to continue against the petitioners, even though the charge sheet has been filed by the police, would become an abuse of the process of law and result in miscarriage of justice, the court said while quashing the complaint and the charge sheet.
