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-Report by Avinash Pandey

The Karnataka High Court observed in Sri Shivaswamy vs The State Of Karnataka the importance of possession of the property to allege trespass. In this case, the respondent had filed a complaint against the petitioner alleging that he had trespassed into her property, threatened the tenants to vacate, and also caused some loss by disconnecting electricity. Furthermore, the petitioner had trespassed on multiple properties in that area. On the above-stated contentions, the complainant was filed under sections 143, 149, 427, 447, 448, and 506 of the Indian Penal Code.

The petitioners had filed this petition to quash the proceedings of the complaint. The counsel from the side of the petitioners contested that, the case is not criminal in nature but is inclined more towards civil originality. It was further stated that the petitioners are trying to arm-twist the case as they had lost all the papers and prior litigations for the property in contention. Furthermore, the complaint was registered after a delay of 7 months. The delay in the filing shows that the complaint was filed with mala fide intention. The respondents on the other hand refuted the contentions and claimed that they had possession of the property.

The Single judge bench comprising Justice M Nagaprasanna made the initial observation that the land, in this case, was purchased duly by the Bangalore Development Authority to make the rightful use for the NTI Housing Co-operative Society. The petitioner purchased the property from the society with a registered sale deed and all the petitioners have purchased their portions via a registered sale deed. After some time had purchased the property with all the paperwork and the revenue records replaced with their names. The complainants had challenged the acquisition in a different case before the Karnataka High court wherein it was held that the petitioners hold the possession of the property and the claim of the complainants have no merit.

The court made the observation that for a case to be made under section 447 the possession should be there. Section 447 read with section 441 of the IPC is an “interplay between a civil right and a crime”. The respondents had also contended that the petition has been filed 3 years after the complaint and hence should be rejected on account of the delay, to which the court replied that it has power under section 482 of the CrPC to allow a petition despite a delay for prevention of miscarriage of justice. The case relied upon by the respondents were also held to be irrelevant.

In the current case, it was seen that the documents provided by the petitioner party were enough for the court to acknowledge their stand and to overpower the documents presented by the respondents. It was observed:

“…The case at hand is for offence under Section 447 of the IPC, for which the most relevant factor would be exclusive possession of the property, on which the accused is alleged to have trespassed. If exclusive possession is not with the complainant, the complaint of criminal trespass into the property and damage to that property under Section 427 of the IPC can hardly be alleged, as observed hereinabove.”

In the judgment the court allowed the Petition to prevent the miscarriage of justice and quashed the criminal complaint against them.

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