- (1.) PRAFULLA C. Pant, J. By means of these two petitions, moved under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr. P. C.), the petitioners have sought quashing of Criminal Case No. 941 of 2003, State v. Balwant Singh Chuphal and others (arising out of Case Crime No. 2472 of 2002 relating to offence punishable under Sections 454, 380 and 506, I. P. C. with Police Station, Haldwani), pending in the Court of Judicial Magistrate, Haldwani.
(2.) HEARD learned Counsel for the parties and perused the papers. Brief facts of the case are that the respondent-Ramesh Chandra Pandey "pathik" Advocate lodged an First Information Report against petitioner-Balwant Singh Chuphal relating to an incident dated 7-8- 2002, in which it is alleged that he was tenant in two shops, situated in Heera Nagar, Haldwani, belonging to Parvatiya Sanskritik Utthan Manch. It is further alleged in the First Information Report that when informant Ramesh Chandra Pandey was out of station due to pilgrimage to Amarnath Yatra petitioner- Balwant Singh Chuphal,with the help of some persons broke open the shops and removed goods including printing press which was being run by wife of complainant, in one of the shops. On his return from Amarnath Yatra informant Ramesh Chandra Pandey lodged the First Information Report which was registered at Case Crime No. 2472 of 2002. It appears that after investigation a charge- sheet was filed against the petitioner-Balwant Singh Chuphal and a separate charge-sheet was filed against the other petitioners namely. Bhuwan Chandra Joshi, Pooran Upadhyay, Hemant Bagadwal, Rajesh Harbola, Arun Pandey and Bhuwan Joshi s/o Heera Ballabha Joshi. The petitioners have challenged the criminal proceedings pending against them before the trial Court on various grounds. It is alleged in the petition that no offence is made out against the petitioners. The statements of witnesses under Section 161, Cr. P. C. were recorded by the Investigating Officer more than once. It is alleged that the Magistrate has erred in law in taking cognizance on the impugned charge-sheet. The charge-sheet are also challenged on the ground that for an offence punishable under Section 441, I. P. C (as amended vide U. P. Act No. 31 of 1961) a 15 days notice was required to be served on the accused which was not done as such offence punishable under Section 454, I. P. C has not been made out. As to the offence punishable under Section 406, I. P. C the petitioners have alleged that the said offence is non-cognizable. The criminal proceedings are also challenged on the ground that the House in question belongs to Parvatiya Sanskritik Utthan Manch against whom proceedings would have been drawn only through its Secretary.
(3.) SRI P. M. N. Singh, learned Counsel for the petitioner-Balwant Singh Chuphal argued that an offence of "criminal trespass". defined under Section 441 of the I. P. C. (as amended by U. P. Act No. 31 of 1961), requires prior notice of 15 days to withdraw from the possession. The said Section 441 as amended by aforesaid U. P. Act (applicable in Uttaranchal) reads as under : "441. "criminal trespass".- Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult of annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with Intent thereby to in intimidate, insult or annoy any such person, or with intent to commit an offence, or, having entered into or upon such property, whether before or after the coming into force of the Criminal Law (U. P. Amendment) Act, 1961, with the intention of taking un-authorized possession or making unauthorized use of such property fails to withdraw from such property or its possession or use, when called upon to do so by that another person by notice in writing, duly served upon him, by the date specified in the notice, is said to commit 'criminal trespass'. " The above definition of criminal trespass is intended only to constitute an offence punishable under Sections 447 and 448 of the I. P. C. From no stretch of imagination can it be said that a notice would be required to constitute the offence of Lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment under Section 454 of the I. P. C. Therefore this Court is unable to accept the contention of learned Counsel for the petitioner.;