Offence Of Criminal Trespass Not Obliterated Once Possession Of Land Is Recovered From Illegal Occupants: J&K High Court

“The moment a person illegally occupies the State land with a view to insult or annoy any person in possession of such property or with an intent to commit an offence, the offence under Section 447-A RPC is complete,” Justice Sanjay Dhar observed while dismissing a petition.

The Court was hearing a plea challenging the charge sheet and criminal proceedings arising out of FIR registered against ome Najeeb Goni and others for offences under Sections 420, 447-A, and 120-B of the Ranbir Penal Code (RPC). Goni had also sought release of his passport to resume employment in Saudi Arabia, a plea earlier declined by the trial court.

Background:

The FIR was registered on a complaint from residents of Tangmarg, who alleged that Goni, in connivance with land brokers had encroached upon approximately 25 kanals of State land located in Village Dhobiwan Kunzar. The accused had allegedly erected signboards and stone markers to demarcate the encroached land and converted it into saleable plots.

The investigation revealed that Goni and his relatives were in possession of nearly 56 kanals of proprietary land and that the State land, scattered within this property, had been illegally merged and encroached upon. Notably, a Power of Attorney executed by Goni in favour of co-accused included survey numbers of State land. Based on this, Bhat entered into multiple agreements for sale of land. The authorities eventually retrieved 25 kanals and 1 marla of encroached State land.

Goni's counsel Sr Advocate Reyaz Jan argued that since the State land had already been retrieved by the time the charge sheet was filed, the offence of criminal trespass no longer survived. They placed reliance on a 2018 report from the Tehsildar, Kunzar, which noted that no encroachment was observed after the October 2017 eviction and that the allegations were baseless.

It was further contended that there was no evidence of fraudulent inducement or cheating as required under Section 420 RPC, and that the proceedings were liable to be quashed. He also argued that the land was under consideration for vesting of ownership rights under the now-repealed Roshni Act, and that the authorities' demolition of boundary walls and eviction from land had been challenged by him in a writ petition, in which interim relief had been granted.

Court's Observations: Retrieval Doesn't Undo the Crime

The Court categorically rejected the argument that the retrieval of land nullified the commission of criminal trespass. “An illegal occupier may be evicted later on but that does not mean that no offence has been committed,” Justice Dhar ruled, asserting that the ingredients of Section 447-A RPC were satisfied the moment unlawful possession was taken with malicious intent.

On the allegations of cheating and conspiracy, the Court noted that the Power of Attorney executed by Goni included survey numbers of State land and authorized his agent to deal with it as if it were his own. “There is also material on record to show that money has exchanged hands between the Attorney Holder of the petitioner and some gullible buyers,” the Court said, holding that these actions fulfilled the ingredients of Section 420 RPC as well.

It further took note of the fact that the trial court had already framed charges against Goni under Sections 420, 447-A, and 120-B RPC, which had not been challenged. Justice Dhar also pointed out that the petitioner had earlier approached the High Court under Section 482 CrPC to challenge the FIR itself, and the same had been dismissed on merits in September 2023.

“In the face of the fact that almost all the grounds that have been urged by the petitioner in the present petition have been considered by this Court in the earlier round of litigation, it was not open to the petitioner to challenge the impugned challan by filing another petition. It appears to be a case of abuse of process of the Court which needs to be deprecated”, the judge remarked, expressing disapproval of repeated litigation over settled issues.

While dismissing the petition, the Court left it open for Goni to approach the trial court for seeking a no-objection certificate (NOC) for reissuance of his passport, clarifying that such relief could be considered at the appropriate forum.

Case Title: Mohammad Najeeb Goni Vs UT Of J&K

Citation: 2025 LiveLaw (JKL) 180

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