Possession under IPC for criminal trespass can include constructive possession as per amendments, affecting criteria for unlawful occupation.

1. This is an appeal by the State against the judgement dated 5-3-1966 of the Judicial Magistrate, Handia, Allahabad, acquitting the accused opposite party, namely, Raja Ram of the charge framed against him for an offence punishable under S.447 of the Indian Penal Code .

2. The appeal first came up before another Bench of this Court and was disposed of on the 3rd September, 1970. The judgement disposing of this appeal was subsequently set aside on an application moved on behalf of the accused opposite party stating that the case was listed without the name of the learned counsel for the accused opposite party and, therefore, the accused opposite party had no information and could not defend himself.

3. The facts are simple. As has been found by the learned Magistrate, Raja Ram constructed a house over an area 23' X 18' at a distance of 45 ft. 7 inches from the southern end of national highway No. 2, or, in other words, the Grand Trunk Road between Allahabad and Varanasi to the south of the first furlong stone beyond the milestone showing 475 miles from Calcutta.

4. According to the prosecution P.W. 3 Durga Prasad, Mate of the Public Works Department of the State, found the accused constructing the house when he inspected the area on the 13th July, 1962. He at once gave a notice to the accused pointing out that he was making the construction within the controlled area or within the boundaries of the national highway and, therefore, it was unauthorised construction. It is said that in spite of the notice the accused completed the construction. Thereafter, the complaint in question was filed by the Assistant Engineer III, Provincial Division P.W. D., Allahabad and on its basic the accused was tried for an offence punishable under S.447 of the Indian Penal Code .

5. The accused pleaded not guilty. According to him, the house in question is outside the boundary of the Grand Trunk Road and stands on the land belonging to Gram Sabha Bhairopur and the accused built the house with the permission of the Gram Pradhan. He further alleged that in the past he was prosecuted regarding this very construction on complaints made by the P.W. D, twice, and, therefore, the present complaint is liable to be dismissed.

6. The prosecution to prove its case examined three witnesses, P.W. 1 is R.B. Tripathi, the then Encroachment clerk of the Public Works Department, Allahabad, who proved the notice (Ex. Ka - 1) served on the accused, the report (Ex. Ka - 2) submitted by the Mate P.W. 3, Durga Prasad, Ex. Ka - 3 the complaint filed by the Asstt. Engineer and Ex. Ka - 4 the site plan prepared by the Mate. Besides proving these documents, the witness stated that the construction in question is only 48' from the Grand Trunk Road and the accused was found building it on the 13th of July, 1965. He further stated that the Road vested in the State Government under a notification issued by the Union Government under the National Highways Act and the Public Works Department manages the Road. P.W. 2 Dina Nath was the Lekhpal of the area. He proved that the Grand Trunk Road at the place where the disputed construction stands, comprised Plot No. 1227 and that where the house has been constructed, its width is 21 latthas. P.W. is Durga Prasad, Mate, already mentioned.

7. The accused examined two witnesses, D.W. 1 Kedar Nath was the Sabhapati of Bhairopur and D.W. 2 was one of the members of the Gaon Sabha. They were examined to prove that the house in question was built in the year 1961 and it is situate on Gram Sabha land and was built with the permission of the Sabhapati.

8. The learned Magistrate made a local inspection. As will appear from the impugned judgement, he rightly found that there is nothing