BNSS No. 15987 of 2026 · Allahabad High Court

HON'BLE SAURABH SRIVASTAVA, J.

Heard learned counsel for applicant and learned AGA.

The present application has been filed by applicant praying for quashing of entire proceeding of Case no. 50/2026 (State vs. Pawan Sarawat) arising out of Case Crime no. 421 of 2024 under sections 447, 448 IPC, PS- Modinagar, District Ghaziabad along with cognizance order dated 13.1.2026 and charge sheet dated 27.5.2025.

The only argument raised by learned counsel for applicant is that implication of the applicant under Section 447 and 448 IPC in charge-sheet is unwarranted since for implication under Section 447 and 448 IPC, prior notice is mandatory as per U.P. Amendment Act, 1961. In Support of his submission, learned counsel for applicant place reliance upon a judgement of this Court passed in the case of Rahtu Lal Rahtu Ram @ Divyanand and others in Application U/s 482 No. 1421 of 2004, relevant paragraph of the said judgment is being quoted hereinbelow:- "5.7 In the above facts and circumstances, applicants cannot be termed as trespassers nor they can be tried under the provisions of Section 447 I.P.C., because no offence under that section is made out against the applicants. Since notice under amended Section 441 I.P.C. is mandatory requirement but the same has not been completed, because no notice under Section 441 I.P.C. is ever sent to applicants. Due to non compliance of this mandatory provision, offence of "criminal trespass" which has been defined in Section 441 I.P.C. has not been made out, therefore, charge sheet filed against applicants under Section 447 I.P.C. is legally not sustainable. " 2 NA528 No. 15987 of 2026

Per contra, learned A.G.A. vehemently opposed the submission made on behalf of applicant by way of submitting that effect of non sending of notice under amended Section 441 I.P.C. has to be looked by learned court concerned and applicant may move an application of discharge before learned court concerned.

Since, legal question has been raised by learned counsel for applicant, process of issuing notice to opposite party no.2, is hereby dispensed with.

For proper appreciation of the rival arguments raised on behalf of parties, amended Sections 441, 442, 447 and 448 I.P.C. are of vital importance and the same are reproduced hereinbelow :- "441. Criminal trespass.- Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to 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 (I.P. Amendment) Act, 1961, with the intention of taking unauthorised possession or making unauthorised 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" "442. House-trespass- Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass. " "447. Punishment for criminal trespass. Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. " " 448. Punishment for house-trespass.— Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. "

It is quite clear from perusal of above amended Section 441 I.P.C. that any 3 NA528 No. 15987 of 2026 person entered into possession of any property of another person before or after coming into force of the criminal law (U.P. Amendment Act, 1961), with the intention to take unauthorised possession or making unauthorised use of such property and fails to withdraw from such property or its possession or use in compliance of the written notice of another person duly served upon him by the date specified in the notice is said to committed criminal trespass and whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass".

Admittedly, in this case, no written notice as specified in the amended Section 441 I.P.C. to withdraw from such property or its possession or use of the land alleged to be of another person i.e. opposite party no. 2 has been served on the applicant, therefore, there is no occasion for the applicant to comply with such notice and vice-versa failing to comply with the notice and as such, no offence of "House trespass" can be said to be committed. Overlooking these facts, charge sheet has been filed under Section 447 and 448 I.P.C. against the applicant whereupon cognizance of offence was taken by learned court concerned, which is bad in the eyes of law.

In view thereof, cognizance order dated 13.1.2026 passed by learned Additional Chief Judicial Magistrate, Court no. 3, Ghaziabad in pursuance of Sections 447 and 448 IPC, is quashed only in respect of applicant herein.