JUDGMENT

H.C.P. Tripathi, J. - On a complaint by Asstt. Engineer, III Provincial Division, Public Works Deptt., Allahabad, Respondent Rajaram was prosecuted for an offence u/s 447 IPC on the allegation that he had constructed a house within the boundary of Grand Trunk Road, N.H. II, on the East of mile No. 476, 1 furlong without the permission of the Public Works Deptt. of the State. A notice was given to the Respondent to remove the disputed constructions, but he did not comply with it.

2. The Respondent had denied to have made any encroachment on the Public road. According to him, he constructed the house with the permission of the Pradhan of the village.

3. The trial Magistrate, after taking into account the evidence led by the parties reached the conclusion that the constructions made by the Respondent came within the limits of the road boundary. The learned Magistrate however placing reliance upon a decision of this Court in Niadar Vs. Ramji Lal, AIR 1925 All 549 held that actual physical possession should have been i proved which has not been done and accordingly acquitted the Respondent.

4. The State came up in appeal against the order of acquittal recorded by the Magistrate. It was heard by a learned Single Judge of this Court.

5. The learned Single Judge noted a divergence of judicial opinion on the point. He felt some difficulty in agreeing with the dictum laid down in the case of Moti Lal (supra) and was inclined to accept the view held by Mr. Justice Kapoor in the case of Sant v. The Union of India (1962) 1 Cri LJ HP 31 in which it has been inter alia held:

The concept of possession embraces both actual and constructive possession. Possession may exist in law, but not in fact and such possession is termed as, constructive. The Roman lawyers distinguished possession 'in fact' as possessio naturals and possession 'in law' as possessio civilis. It is trite law that every owner of property is presumed to be in possession of it unless the contrary is proved. The word 'possession' as used in the aforesaid section is, therefore, wide enough to include not only actual and physical, but also constructive possession.

6. In the aforesaid case the learned Judge, while noticing the case of Motilal was pleased to observe that the ruling no doubt supports the contention put forward on behalf of the Petitioners, but it is respectfully submitted that if Kanhaiya Lal was legally entitled to the property of the husband of Smt. Basanti, he must be deemed to be its owner, for inheritance cannot remain in abeyance and in the eye of law he must be deemed to have been in possession.

7. The learned Single Judge, hearing the appeal, therefore, thought it proper to refer the question "as to whether there should be actual physical possession before a person can be convicted of an offence u/s 447, IPC" for consideration by a larger Bench. That is how the question has come up before us.

Section 441 of the IPC reads:

Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property,

or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".

8. The authors of the Code say, as reproduced in Ratanlal's "Law of Crimes":

We have given the name of trespass to every usurpation, however slight, of dominion over property. We do not propose to make trespass, as such, an offence, except when it is committed in order to the commission of some offence injurious to some persons interested in the property on which the trespass is committed, or for the purpose of causing annoyance to such a person. Even then we propose to visit it with a light punishment, unless it be attended with aggravating circumstances.

These aggravating circumstances are of two sorts. Criminal trespass may be aggravated by the way in wh