' These two connected petitions under section 561-A, Cr. P. C. Are directed against the proceedings of two criminal cases for offences under sections 447 and 379, P. P. C. Respectively, regarding possession of a plot in Rafa-i-Aam Co-operative Society and theft of water for raising construction on that plot.
2. The facts in brief are that the petitioner Shariful Hassan was allotted plot No, 96 in Block C measuring 287.50 sq. Yards on 17th March 1970 against his membership No, 1289 by the then Honorary Secretary of the Society. According to the letter issued to him he was authorised and entiteld to hold possession of the said plot and Rs, 200 had been received by the Society towards the water charges for construction. The Honorary Secretary happened to be the brother of the allottee. It is said that he had also allotted certain plots to his other relatives. This created some sort of uproar and the Honorary Secretary was made to give up the Honorary post and in the year 1971 the said allotment was cancelled by the managing committee. Petitioner Shariful Hassan had by this time raised a wall and put a gate and remained in possession of the said plot. One Nasiruddin was a claimant for the said plot and he filed an appeal before the Deputy Registrar that the plot may be given to him. This appeal was dismissed by the Deputy Registrar in the year 1974. A revision was filed before the Registrar and the same is still pending.
3. The Society, however, through one Ghulam Jilani lodged a report on 10-2-1974 regarding criminal trespass in respect of this plot, alleging an offence under section 447 against Shariful Hassan and his brother the Ex-Honorary Secretary Mr. K. E. Ansari and also a report for offence under section 379/430, P. P. C., that the water connection had been taken illegally by them. The police sent up charge-sheets in both the cases though they mentioned that the allotment papers and the papers regarding the water connection had been produced before them but that they were sending up the cases as their officers thought that the cases were worth challaning.
4. Pending these criminal proceedings the Society also filed a civil suit in respect of the same dispute. However, the suit for possession and injunction, was later withdrawn by the Society and it was dismissed. This was done as a result of some understanding reached between the parties and by resolution the Managing Committee had agreed to end all disputes and the cases filed on behalf on the Society against the members. The said resolution included criminal cases filed against petitioner Shariful Hassan and K. E. Ansari. This resolution was passed on 23-3-1976.
However, it appears that the matter did not end there and the Society continued to pursue these matters in the Courts.
5. It has been argued by Mr. Malik Muhammad Saeed on behalf of the petitioner that he had been allotted the plot in question and he had also been authorised to occupy the said plot. Under these circumstances he could not be said to have committed any criminal trespass in the year 1974 after having remained in possession for a period of 4 or 5 years. Mere taking over possession or remaining in possession unauthorisedly cannot constitute the criminal offence of trespass unless there is the requisite intention to intimidate, annoy or insult the person in possession. In this case Mr. Shariful Hassan was ostensible allottee who had remained in occupation of the plot for 4 or 5 years. There is no allegation that he stayed on that plot in order to annoy the Society or to insult anybody. On the other hand he had presumably occupied the plot and remained in possession under a bona fide claim of right as allottee and member of the Society. Regarding the taking of water connection unauthorisedly it has been contended on behalf of the petitioner that he had made payment of Rs, 200 for water connection charges and he had obtained the connection from the Society. Under these circumstances the requisite criminal intention is wanting and in the absence of any mens rea the criminal offence cannot be said to have been committed. The dispute, if any, with the Society is purely of civil nature. It is up to the parties concerned to pursue that remedy in case they can still do so under the laws of limitation. The criminal proceedings, it appears, are being continued with intention to coerce the parties and harass them and thereby to obtain possession of the plot in question.
6. The proceedings of these two cases are accordingly quashe.