2026:HHC:9658

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 335 of 2015

Reserved on: 18.03.2026

Date of Decision: 01.4.2026.

State of H.P. ...Appellant

Versus

Purshottam Singh ...Respondent

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

1

No

For the Appellant : Mr Jitender K Sharma, Additional

Advocate General.

For the respondent : Mr. Chaman Verma, Advocate vice

Ms. Kiran Lata Negi, Advocate.

Rakesh Kainthla, Judge

The present appeal is directed against the judgment

dated 06.09.2014, passed by learned Chief Judicial Magistrate

Kinnaur, District at Reckong Peo, H.P. (learned Trial Court), vide

which the respondent (accused before the learned Trial Court)

was acquitted of the commission of offences punishable under

Section 447 of the Indian Penal Code (IPC) and Section 33 of

Indian Forest Act. (Parties shall hereinafter be referred to in the

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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same manner as they were arrayed before the learned Trial Court

for convenience.)

2. Briefly stated, the facts giving rise to the present

appeal are that the police presented a challan before the learned

Trial Court for the commission of offences punishable under

Section 447 of the IPC and Section 33 of the Indian Forest Act. It

was asserted that Goverdhan Dass (PW1) made a complaint to

the police (Ex.PW1/A) stating that the accused, Devi Lal, had

encroached upon more than 10 bighas of land bearing khasra

nos. 29, 32, 464, 467, 486, 720, 1090 and 1097 measuring 0-98-

31 hectares in Up Mohal Jani, Kalingo, and an action should be

taken against him. The police registered an FIR (Ex.PW6/D).

Devi Singh (PW2) demarcated the land and found that the

accused Devi Lal had encroached upon khasra nos. 29, 32, 464,

467, 486, 720, 1090 and 1097, measuring 0-38-33 hectares (5

bighas 2 biswas) of government land. He prepared the report

(Ex.PW2/A), recorded the statement of Purshottam Singh

(Ex.PW2/E), joint statements of Goverdhan, Joginder and

Sukhdev (Ex.PW2/F) and issued copies of the jamabandi (Ex.

PW2/B and Ex. PW2/C) and Tatima (Ex. PW2/D). HC Sukhdev

(PW6) investigated the matter. He visited the spot, prepared a

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site plan (Ex. PW6/A) and took the photographs (Ex.P1 to Ex.P6).

Copies of the notification (Ex. PW5/A) and working plan

(Ex.PW5/B) were seized. Statements of witnesses were recorded

as per their version, and after completion of the investigation, a

challan was prepared and presented before the learned Trial

Court.

3. Learned Trial Court found sufficient reasons to

summon the accused. When the accused appeared, a notice of

accusation was put to him for the commission of offences

punishable under Section 447 of the IPC and Section 33 of the

Indian Forest Act, to which he pleaded not guilty and claimed to

be tried.

4. Prosecution examined 6 witnesses to prove its case.

Goverdhan Dass (PW1) made a complaint of encroachment. Devi

Singh (PW2) demarcated the land. Sunita Devi (PW3) did not

support the prosecution’s case. Inder Singh (PW4) was present

during the demarcation. Bhupinder Chauhan (PW5) produced

the copies of the notification and working plan. HC Sukh Dev

(PW6) investigated the matter.

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5. The accused, in his statement recorded under Section

313 of Cr.P.C., denied the prosecution’s case in its entirety. He

stated that the witnesses deposed against him falsely and that

he was innocent. He did not produce any evidence in defence.

6. Learned Trial Court held that the accused was

occupying the land for a long time, and the intent to insult,

intimidate or annoy was not proved. Mere possession, even if

illegal, is not sufficient to constitute criminal trespass. Hence,

the learned Trial Court acquitted the accused.

7. Being aggrieved by the judgment passed by the

learned Trial Court, the State has filed the present appeal

asserting that the learned Trial Court erred in acquitting the

accused. It was duly proved on record that the accused had

encroached upon the Government land. The intention was to be

gathered from the circumstances of the case. The accused

continued to be in possession, which showed his intention.

Clearing of the land is sufficient to attract the provisions of the

Forest Act. The demarcation was conducted as per the law, and

encroachment was proved. The prosecution had proved its case

beyond a reasonable doubt, and the learned Trial Court erred in

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acquitting the accused. Hence, it was prayed that the present

appeal be allowed and the judgment passed by the learned Trial

Court be set-aside.

8. I have heard Mr Jitender Sharma, learned Additional

Advocate General, for the appellant-State and Mr. Chaman

Verma, learned counsel representing the respondent/accused.

9. Mr Jitender Sharma, learned Additional Advocate

General, for the appellant-State, submitted that the learned

Trial Court erred in acquitting the accused. It was duly proved by

the evidence on record that the accused had encroached upon

the Government land and raised an apple orchard over it. The

learned Trial Court erred in holding that the necessary intention

was not proved. The accused continued his possession of the

government land, which showed his intent. The learned Trial

Court had taken a view that could not have been taken by any

reasonable person. Therefore, he prayed that the present appeal

be allowed and the judgment passed by the learned Trial Court

be set aside.

10. Mr. Chaman Verma, learned counsel representing the

respondent/accused, submitted that the learned Trial Court had

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rightly held that the mere possession is not sufficient to

constitute criminal trespass. This was a reasonable view that

could have been taken based on the evidence produced before

the Court, and this Court should not interfere with the

reasonable view of the learned Trial Court while deciding the

appeal against the acquittal. Hence, he prayed that the present

appeal be dismissed.

11. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

12. The present appeal has been filed against a judgment

of acquittal. It was laid down by the Hon’ble Supreme Court in

Surendra Singh v. State of Uttarakhand, (2025) 5 SCC 433: 2025 SCC

OnLine SC 176 that the Court can interfere with a judgment of

acquittal if it is patently perverse, is based on misreading of

evidence, omission to consider the material evidence and no

reasonable person could have recorded the acquittal based on

the evidence led before the learned Trial Court. It was observed

at page 438:

“24. It could thus be seen that it is a settled legal position

that the interference with the finding of acquittal

recorded by the learned trial Judge would be warranted by

the High Court only if the judgment of acquittal suffers

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from patent perversity; that the same is based on a mis-

reading/omission to consider material evidence on

record; and that no two reasonable views are possible and

only the view consistent with the guilt of the accused is

possible from the evidence available on record.

13. This position was reiterated in State of M.P. v.

Ramveer Singh, 2025 SCC OnLine SC 1743 , wherein it was

observed:

21. We may note that the present appeal is one against

acquittal. Law is well-settled by a plethora of judgments

of this Court that, in an appeal against acquittal, unless

the finding of acquittal is perverse on the face of the

record and the only possible view based on the evidence is

consistent with the guilt of the accused, only in such an

event, should the appellate Court interfere with a

judgment of acquittal. Where two views are possible, i.e.,

one consistent with the acquittal and the other holding

the accused guilty, the appellate Court should refuse to

interfere with the judgment of acquittal. Reference in this

regard may be made to the judgments of this Court in the

cases of Babu Sahebagouda Rudragoudar v. State of

Karnataka (2024) 8 SCC 149; H.D. Sundara v. State of

Karnataka (2023) 9 SCC 581 and Rajesh Prasad v. State of

Bihar (2022) 3 SCC 471.

14. The present appeal has to be decided as per the

parameters laid down by the Hon’ble Supreme Court.

15. The report of demarcation shows that the accused

had encroached upon 5-02 bighas of land. This Court held in

Param Dev vs State of H.P. 2015:HHC:236 that where the

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encroachment was less than 10 bighas, the FIR could not be

lodged. It was observed:-

“The FIR aforesaid was lodged against the bail applicant

for the purported commission of penal acts constituted

under the aforesaid statutory provisions, in pursuance of

the directions rendered by this Court in Cr.MP(M) No.

1299/2008. This Court had rendered peremptory

directions to the respondent to institute/lodge FIRs.

against those encroachers who had encroached upon

more than 10 bighas of Government/forest land.

Obviously, given the fact that the petitioner herein has

purportedly encroached upon Government/forest land to

the extent of an area measuring 8-6-17 bighas, as such,

when the Government/forest land purportedly

encroached upon by the petitioner herein constitutes an

area less than 10 bighas, naturally then when FIRs were

directed to be lodged against encroachers upon

Government/forest land, who have encroached therein

beyond 10 bighas, which is not the extent of the area of

Government/forest land purportedly encroached upon by

the petitioner herein/accused, no FIR in pursuance to the

directions of this Court was either lodgable or

instituteable against the petitioner herein. In sequel,

when the FIR as lodged against the petitioner was

unlodgable against him, obviously then its being lodged

against the petitioner in sequel whereof a Notice of

Accusation put to him, constitutes an infraction of the

directions issued by this Court in Cr.MP(M) No.

1299/2008, rendering it to be interferable and

quashable.”

16. Therefore, the FIR could not have been registered in

the present case, and the learned Trial Court had rightly

acquitted the accused.

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17. Section 441 of the IPC defines criminal trespass as an

entry upon the property in possession of another with intent to

commit an offence or to intimidate, insult or annoy any person

in possession of such property. It was laid down by the Hon’ble

Supreme Court in Mathri v. State of Punjab, 1963 SCC OnLine SC

180: AIR 1964 SC 986 that the prosecution has to prove that the

aim of the accused was to insult, intimidate or annoy and merely

because the insult, intimidation or annoyance was caused by the

entry is not sufficient. It was observed:

18. We think, with respect, that this statement of law, as

also the similar statements in Laxaman Raghunath case

[26 Bombay 558] and in Sellamuthu Servaigaran case [ILR

35 Mad 186], is not quite accurate. The correct position in

law may, in our opinion, be stated thus: In order to

establish that the entry on the property was with the

intent to annoy, intimidate or insult, it is necessary for

the Court to be satisfied that causing such annoyance,

intimidation or insult was the aim of the entry; that it is

not sufficient for that purpose to show merely that the

natural consequence of the entry was likely to be

annoyance, intimidation or insult, and that this likely

consequence was known to the persons entering; that in

deciding whether the aim of the entry was the causing of

such annoyance, intimidation or insult, the Court has to

consider all the relevant circumstances including the

presence of knowledge that its natural consequences

would be such annoyance, intimidation or insult and

including also the probability of something else than the

causing of such intimidation, insult or annoyance, being

the dominant intention which prompted the entry.

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18. This position was reiterated in Rajinder v. State of

Haryana, (1995) 5 SCC 187: 1995 SCC (Cri) 852, wherein it was

observed at page 198:

“21. It is evident from the above provision that

unauthorised entry into or upon property in the

possession of another or unlawfully remaining there after

lawful entry can answer the definition of criminal

trespass if, and only if, such entry or unlawful remaining

is with the intent to commit an offence or to intimidate,

insult or annoy the person in possession of the property.

In other words, unless any of the intentions referred to in

Section 441 is proved, no offence of criminal trespass can

be said to have been committed. Needless to say, such an

intention has to be gathered from the facts and

circumstances of a given case…”

19. In the present case, the complaint (Ext.PW1/A) only

mentioned that the accused had encroached upon more than 10

bigahs of land, and an action should be taken against him. There

is no averment that the accused had encroached upon the land

with an intent to commit an offence or intimidate, insult or

annoy any person in possession; therefore, the ingredients of

Section 447 of IPC were not satisfied.

20. Section 29 of the Forest Act provides that the State

Government may, by notification in the official Gazette, declare

the provisions of Chapter IV of the Act applicable to any forest

land or wasteland which is the property of the Government, or

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over which the Government has proprietary rights. Section 30

authorises the State Government to prohibit the breaking up or

clearing for cultivation of any land in a protected forest for such

terms, not exceeding thirty years, as the State Government

thinks fit. Section 31 of the Forest Act provides for the affixation

of the translation of every such notification issued under Section

30 to be affixed in a conspicuous place in every town and village

in the neighbourhood of the forest. Section 32 entitles the State

Government to make rules to regulate the clearing or breaking

up of land for cultivation or other purposes in such a forest.

Section 33 of the Forest Act provides penalties for acts in

contravention of a notification under Section 30 or for rules

under Section 32.

21. This Court held in State of H.P. vs. Amin Chand 1992

(2) Shim.LC 169 that the issuance of the notification and its

publication are necessary to attract the provisions of Section 33

of the Indian Forest Act. It was observed:-

“7. Sections 29 to 39 of the Indian Forest Act, 1927

(shortly hereinafter referred to as 'the Act') are material.

The procedure of declaring protected forest is laid down in

section 29 of the Act, which provides that the State

Government may by notification in the official Gazette

declare the provisions of Chapter IV of the Act applicable

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to any forest land or wasteland which is not included in a

reserved forest, but which is the property of Government,

or over which the Government has proprietary rights, or to

the whole or any part of the forest produce of which the

Government Is entitled. The forest land comprised in such

notification is referred to in the Act as a protected forest.

Sub-section (3) of section 29 of the Act provides for

certain inquiries to be made before declaring a forest as a

'protected forest'. Under section 30, the State Government

is authorised inter-alia to declare any trees or class of

trees in protected forest to be reserved from the date to be

fixed by notification or to prohibit from a date fixed for the

removal of any forest produce and the breaking up or

clearing for cultivation of any land in a protected forest for

such terms, not exceeding thirty years as the State

Government thinks fit. Resultantly, the rights of private

persons, if any, over such portion shall stand suspended

during such term, provided that the remainder of such

forest be sufficient and, in a locality, reasonably

convenient, for the due exercise of the rights suspended in

the portion so closed. The Collector then is required under

section 31 to cause translation into the local vernacular of

every such notification issued under section 30 to be

affixed in a conspicuous place in every town and village in

the neighbourhood of the forest comprised in the

notification. Section 32 entitles the State Government to

make rules to regulate the forest matters set out in the

said section, including "clearing or breaking up of land for

cultivation or other purposes in such forest". Section 33

provides penalties for acts in contravention of a

notification under section 30 or for rules under section 32.

9. Apart from it, even if the aforesaid copy of the

notification is assumed to be a legal and valid notification

for the sake of argument, the requirement of section 31 of

the Act has not been proved. Admittedly, as per the

prosecution evidence, the land of the accused adjoins that

of the alleged encroached land. Section 31 referred to

above envisages that the Collector shall cause a translation

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into the local vernacular of every notification issued under

section 30 to be affixed in a conspicuous place in every

town and village in the neighbourhood of the forest

comprised in the notification Here neither oral nor

documentary evidence has been adduced to show whether

notification (Mark X) was translated in the local

vernacular and whether its copy was affixed in a

conspicuous place in the neighbouring villages as

envisaged therein This procedure is meant only so that the

respondents of the neighbouring villages, much less the

accused, may acquire knowledge as to the declaration of a

particular forest into demarcated protected forest, In the

absence of such procedure having not been followed by the

appellant, ii would be against the principle of natural

Justice to permit the subject of a Slate including the

accused to be punished or penalised by laws of which they

had no knowledge and of which they could not even with

the exercise of reasonable diligence, have acquired any

knowledge Natural justice requires that before a law can

become operative it must be promulgated or published It

must be broadcast in some recognisable way so that all

persons may know what it is ; or at the very least, there

must be some special rule or regulation or some other way

or customary channel by or through which such

knowledge can be acquired with the exercise of due and

reasonable diligence. In the absence thereof, a law cannot

come into being by merely issuing a notification without

giving it due publicity in accordance with the mandatory

provisions of law.”

22. This position was reiterated in State of H.P. Ravi

Kumar 2008 HLJ 363, wherein it was observed: -

“10. The prosecution has failed to prove that ten pine

trees were cut by the respondent from the land in

question. There is no evidence on record to link the trees

allegedly cut by the respondent to the land in question. No

demarcation of the land from where the trees were

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allegedly cut has been proved on record. There is nothing

on record that the forest in question is a notified

protected forest. The notification declaring the Forest in

question as a protected forest has not been placed on

record. There is no evidence of circulation of notification,

under Sections 32, 33, read with Sections 30 and 31 of the

Act, in the vernacular in the locality. The alleged

confessional statements, Ex. PA and Ex. PW 2/A are of no

help to the prosecution for want of proof of notification,

under Sections 32, 33, read with Sections 30 and 31 of the

Act and its publication in the vernacular in the locality…”

23. In the present case, no person deposed about the

publication of the notification in the vicinity; hence, the

provisions of Section 33 of the Forest Act are not attracted to the

present case.

24. No other point was urged.

25. Consequently, the present appeal fails, and it is

dismissed. Pending miscellaneous application(s), if any, also

stand disposed of.

26. In view of the provisions of Section 437-A of the Code

of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha

Sanhita, 2023) the respondent/accused is directed to furnish bail

bonds in the sum of ₹25,000/- with one surety in the like

amount to the satisfaction of the learned Trial Court within four

weeks, which shall be effective for six months with stipulation

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that in the event of Special Leave Petition being filed against this

judgment, or on grant of the leave, the respondent/accused on

receipt of notice thereof, shall appear before the Hon’ble

Supreme Court.

27. Records be sent back to the learned Trial Court

forthwith, along with a copy of the judgment.

(Rakesh Kainthla)

Judge

1

st

April, 2026

(Nikita)