JUDGMENT D.S. Mathur, J. - This is an application in revision by Sher Andil Khan and nine others against the order of the Magistrate not discharging them of an offence punishable under Section 448, I.P.C. 2. The case was started on the complaint of Hajee Manzoor Ahmad, presented before the Magistrate on 17-12-1962, It was alleged therein that one Eknawaz Khan Kabli had wrongly occupied the house belonging to him and to his brother, Dr. Maqbool Ahmad, during the time the house was under the management and control of the Custodian; that on 1-6-1962 the Rent Control Inspector came to the complainant to make an inquiry and then he (Complainant) came to know that the present applicants had made an application for allotment of the house; and that thereafter he served a notice dated 22-9-1962 on the present applicants calling upon them to vacate the house by October 4, 1962. The complainant's case is that the applicants did not vacate the house and their occupation thereof amounts to house trespass as defined in Section 442, I.P.C. and they have committed an offence punishable under Section 448, I.P.C. 3. Section 441, I.P.C. was amended under the Criminal Laws (U.P. Amendment) Act, 1961 and the amended section runs as below. "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. or, having entered into or upon such property, whether before or after the coming into force of the Criminal Laws (U.P. Amendment) Act, 1961, with the intention of taking unauthorised possession or making unauthorised use of such property fails to withdraw from such property, or its possession or use when called upon to do so by that another person by notice in writing, duly served upon him, by the date specified in the notice. is said to commit criminal trespass." House trespass as defined in Section 442, I.P.C. is criminal trespass for entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property. 4. is said to commit criminal trespass." House trespass as defined in Section 442, I.P.C. is criminal trespass for entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property. 4. The important point for consideration, therefore, is if on the basis of the facts as alleged in the complaint or facts as have come on the record the applicants can be said to have committed criminal trespass. 5. Manzoor Ahmad, complainant, admitted in cross-examination that Eknawaz Khan paid the rent of the house through Sher Andil Khan for the last time in April, 1962. This admission makes it clear that Eknawaz Khan was accepted as a tenant up to the end of April, 1962, and that in all probability Sher Andil Khan was one of the persons in occupation of the house. Even if the possession of Eknawaz Khan was originally unlawful or without the consent of the complainant, his possession became lawful when the complainant started accepting rent without any objection. The mode of payment through Sher Andil Khan will merely suggest that his possession was not with the intention to commit an offence or to intimidate, insult or annoy anyone, the owners of the house or any other person. The change that took place since after April 1962 is that the persons in occupation viz., the present applicants, moved the Rent Control and Eviction Officer for allotment of the house to them and the allotment order was eventually passed on 26-10-1962. This would appear from the court's judgment in Haji Manzoor Ahmad v. Rent Control and Eviction Officer, Varanasi, CMW No. 3984 of 1962. 6. In determining whether entry into a house or remaining in occupation of the house was with the guilty intention as contemplated by Section 441, I.P.C. one will have to look into not only the conduct of the accused persons but also of the complainant. It shall be found that the complainant had taken no objection to the occupation of the house by the present applicants for so long as they did not take steps for obtaining an allotment order from the Rent Control and Eviction Officer. It shall be found that the complainant had taken no objection to the occupation of the house by the present applicants for so long as they did not take steps for obtaining an allotment order from the Rent Control and Eviction Officer. He did not also take prompt steps when it came to his notice that they had made an application to the Rent Control and Eviction Officer for the allotment of the house. The notice was given to the applicants in the end of September 3 months after he became aware of the above application and one month before the passing of the allotment order. This would suggest that the complainant took recourse to the criminal proceeding on finding that the Rent Control and Eviction Officer was inclined to allot the house to the applicants and would not release it in favour of the owner. 7. Considering that the complainant had not in the beginning raised any objection to the occupation of the house by the applicants, it cannot by any stretch of imagination be said that when they continued in possession of the house they had the intention to commit an offence or to intimidate, insult or annoy the owners therefore. The applicants were residing in the house peacefully without the intention of committing any criminal offence. They had not intimidated or insulted the owners, nor can it be said that their intention was to cause annoyance to them. It was the complainant who was trying to break the law by letting the accommodation without allotment, and when the persons in occupation tried to act within the law by moving the Rent Control and Eviction Officer to formally allot the house to them, it cannot be said that they were trying to annoy the owners. Annoyance must be a substantial one and not the annoyance which a wrong doer would feel when stopped from committing an illegal act. 8. The ingredients of Section 441, I. P.C. as contained in the unamended provision were thus not made out. The U.P. amendment further laid down that if a fails to withdraw from the property or his possession or use when called upon to do so by a notice in writing duly served upon him, with the intention of taking unauthorised possession or making unauthorised use of such property commits criminal trespass. The U.P. amendment further laid down that if a fails to withdraw from the property or his possession or use when called upon to do so by a notice in writing duly served upon him, with the intention of taking unauthorised possession or making unauthorised use of such property commits criminal trespass. Continuance in possession even after receipt of notice from the owner does not by itself amount to an offence of criminal trespass punishable under the Indian Penal Code. The continuance in possession must be with the intention of taking unauthorised possession or making unauthorised use of such property. 9. It shall be found that the applicants continued in possession of the house on account of the pendency of the proceeding before the Rent Control and Eviction Officer. They had moved an application for the allotment of the house which was under serious consideration of the Rent Control and Eviction Officer. The application was eventually allowed and the house was allotted to the applicants on the 26th of October, 1962. It is true that the possession of the applicants prior to 26-10-1962 was irregular but it will be wrong to say that they remained in possession to take unauthorised possession thereof, or to make unauthorised use of the property. The intention of the applicants apparently was to remain in possession till final orders were passed by the Rent Control and Eviction Officer. If the allotment was made in their favour, they would have continued in possession, otherwise would have vacated it. 10. To sum up, on taking into consideration all the facts and circumstances of the case it cannot be said that while disregarding the notice served upon them or while continuing in occupation of the house the applicants had been_guilty of the offence as laid down in Section 441, I.P.C. Their occupation did not amount to house trespass as defined in Section 442, I.P.C. and they all deserved to be discharged of the offence. The Magistrate's order refusing to discharge the applicants was thus illegal and deserves to be set aside. 11. The revision is hereby allowed and the Magistrate's order dated 20-3-1963 is set aside. The complaint of Haji Manzoor Ahmad shall stand dismissed and the present accused applicants discharged of the offence.