PANKAJ NAQVI, J. - (1.) HEARD learned counsel for parties.
(2.) THIS application under Section 482 Cr.P.C. has been preferred against the order dated 3.2.2015 passed by Metropolitan Magistrate (Court No.6), Kanpur Nagar in Case no. 949 of 2013 (State Vs. Anil Kumar Mishra and others), whereby application filed by the applicant for alteration of charge has been rejected.
(3.) THE O.P. No.2 filed an application under Section 156(3) Cr.P.C. on 23.2.2013 alleging that the applicants are in unauthorized possession of the property in dispute; that the said application was preceded by a notice dated 16.2.2013 purporting to be under Section 441 IPC as amended by the State on which by the order of the learned Magistrate, an FIR came to be registered under Section 448 IPC on 24.3.2013 and other offences, in which Charge Sheet was filed on 29.4.2013 and charges framed under various provisions including Section 448 IPC on 28.3.2014. Subsequently, applicant preferred an application under Section 482 Cr.P.C. no. 36754 of 2014, against the order dated 28.3.2014, which came to be disposed of on 5.9.2014 that in case, applicants file an application before the court concerned for alteration of a charge of Section 448 IPC, same would be considered in accordance with law. Pursuant thereto, an application for alteration of charge has come to be rejected under the impugned order. The sole contention urged is that in view of U.P. Amendment to Section 441 IPC a notice is to be duly served upon the trespasser by the date specified in the notice before he can be said to have committed "criminal trespass". The contention is that as the notice dated 16.2.2013 called upon the applicants to deliver alleged unauthorized possession on or before 28.2.2013, an application under Section 156(3) Cr.P.C. filed on 23.2.2013 was not maintainable, consequently an FIR under Section 448 IPC lodged pursuant thereto on 24.3.2013 is without jurisdiction. Learned counsel for applicants relied upon a judgment of this Court in the case of Ved Prakash Vs. Chaman Singh and others, 1995 CrLJ 3890.;