SMT. KANWAL SOOD versus NAWAL KISHORE AND ANOTHER

Citation: [1983] 1 S.C.R. 871 · Decided: 26-11-1982 · Supreme Court of India · Bench: D.A. DESAI · Disposal: Appeal(s) allowed

Judgment (excerpt)

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L
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SMT. KANW AL SOOD 
v. 
NAWAL KISHORB.AND ANOTHER· 
November 26, 1982 · 
[D.A; DESAI, AND R.B. MISRA JI.) 
871 
.A 
Criminal tre1spa.rs-Donor re1ening . /ife interest in., the house gifted to the 
done~Permitting another to re1ide with hlm-Statu1
4ofthat perSon after the death · 
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of the donor whether.hU occupation would amount to Criminal trespaJ1-Penal 
Code Section 441 aJ amended by U.P •. Act JI of 1961. 
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Premise!,. "A.ranaya. Kutir" .. bearing~_ Municipal No. 47A :Jakhan:. in 
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Dehradun was owned by one Sbri R.C. Sood •. He .executed a gift' deed in favour -
or Shree Anand Mayee.Sangh. Dehradun,. with a stipulation that the-donor shall·;. 
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remain in' possession or the premises during -his lif~time and arter his death hi• 
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widow if alive wouJd remaiii in possession.- The management of the same would 
be taken up b7 the Sangh after their death; 
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In 1967, the appellant,. the. widow or_ the brother of Shri R.C. Sood was , 
invited by ShriSood to .reside with .him-in ,the aforesaid house and ever.since 
she has been resi_ding peacefully_ there. _On .10th of- October~ 1973 Shri R.C •. 
Sood expired. Respondent No. 1;· Shri Nawal ·- Kishore as Secretary of the 
Anand Mayee Sangh. served a notice dated 13th November, 1973 on the u.ppellant 
asking her to vacate the premises· immediatelyi and threatening to take criminal 
action against her on failure to do so, as her further stay in the premises would . 
be deemed t<?_ be. in the nature of a criminal trespass. "When the appellant did 
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not vacate ~be premises, respondent No. 1 filed a complain5 under section 468 
'ofJhe PeD.al Code. The Sub·Divisional Magistrate, Mussorie fourid that the 
coD.tinued stay or the appcUant amounted to criminal trespas!I within the meaning 
or section 441 of the Penal Code, convicted her under section 448 and sentenced 
her to pay a fine or Rs. 100 or in lieu thereof to undergo simple imprisonment 
for 40 days. Jn addition, the learned Magistrate also passed an order dirtcting 
the appellant to _~acate the premises within twO _ months of __ th~ order, purporting 
, to be one under section 456 oi the Criminal Procedure Code: 
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The appeal preferred by the iPDelJant was allowed and the conviCtion and 
-.....___sentence pa!sed were set aside~· Respondent No. 1, therefore assailed the order 
or acquittal by filing a criminal appeal before the, High Court. The High Court 
allowed it and reversed thO order of. acquittal passed by the. Sessions Judge and 
convicted the appellant. In the opinion of the High Court, the appeal filcl by 
the appellant before the Sessioos Judge was. incompetent. as no appeal would lie 
against the impositi9n of fine.. The High Court, declined to treat the appeal as 
r; 1 is ion in as much as under \he provisi?D$ of section 401(~ of the Crimin~ 
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A 
872 
SUPREME COURT REPORTS 
[1983) 1 S.C.11, 
Procedure Code, it is permissible to treat a revision a~ an appeal but not vice 
versa. Hence the appeal by sp~cial leave. 
Allowing the appeal, the Court 
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HELD: 1 :1.. In order to satisfy the conditions of section 441 of the 
. Penal Code, it rn.ust be established that the party, complained of eri.tered in 
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possession over the premises with intent to. commit an offence. Every trespass 
does not amount to criminal trespass within the meaninS Ofthat section. [875 G] 
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1:2. Initiating criminal proceedings in the circumstances of this instant 
case is only an abuse of the process of the court. This is essentialTy a civil 
matter which could be properly adjudicated uPon by a competent civil court. 
(a) The appellant was' allowed to occtlpy tho premises in 1967 by Mr. Sood 
perhaps on •tease and license' basis. (b) A bare perusal of the complaint filed by : 
Respondent No. 1 makes it abundantly clear that there is absolutely no allegation 
about the intention of the appetlant to commit any offence, or to intimidate, 
insult or annoy any person in possession ; and (c) If a suit for eviction is filed 
in the civil court, the appellant, who may be fondly thinking that she had a 
right to occupy the premises even after the death of Shri Sood, might be in a 
position to vindicate her right and justify hei p_ossCssion. f87S E-H, 876 A, E-F] 
2. The ·appeal filed by the appellant before the Sessions Judge was 
competent and maintainable. If the learned Magistrate had only awarded a 
sentence of fine, in that case revision alone would be competent and not an 
appeal. But in 

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