ORDER M.N. Shukla, J. - By this revision the Applicant has challenged his conviction u/s 447 IPC and sentence to a fine of Rs. 100/- or in default one month's rigorous imprisonment. The revision raises a somewhat important question bearing on the ingredients of the offence of criminal 'trespass' I have heard the learned Counsel for the parties at length. 2. The material facts for appreciating the point of law canvassed before me are that the Applicant is the husband of the owner of a house situate in Mohalla Seth Pura, Mathura City. The house was in the occupation of the Allahabad Bank Ltd. as a tenant. The report regarding the incident giving rise to this case was lodged by the Agent of the Bank against the Applicant. The allegations made by the prosecution were that to the west of the building occupied by the Allahabad Bank Ltd., there was open land on which servants quarters existed. The owner wanted to make some new constructions on the open space and in doing so the Applicant acting on behalf of the owner and supervising the entire action, dismantled the western boundary wall and some portions of the northern and southern boundary walls of the house and constructed new walls in their places after encroaching upon the land in the occupation of the Allahabad Bank. It is alleged that the Agent of the Bank objected to this action of the Applicant but the latter assured him that he would not trespass over the land but would get the walls constructed a new. He, however, did not Keep to his word and committed trespass. The complainant lodged a report of the incident at police station Kotwali on the same day i.e. 11-1-1966 and when the Station Officer reached the spot, the masons and the labourers ran away and the accused who were supervising their work were arrested on the spot. The police investigated into the offence and submitted a charge sheet against the Applicant. 3. The accused stated that his wife was the owner of the house in dispute that he had civil litigation with the complainant and the criminal case had been instituted by way of revenge. He further stated that the new wall had been built at the same spot where the old wall -existed and no area of the Allahabad Bank was trespassed. He further stated that the new wall had been built at the same spot where the old wall -existed and no area of the Allahabad Bank was trespassed. In defence he examined one Roshan Lal, the mason who had constructed the new building of the accused. The witness stated that the new walls had been built at the same place where the old ones stood and no encroachment was made. 4. The prosecution examined four witnesses to prove its case. They are Raghunath Prasad Mahrotra, Agent of the Allahabad Bank (PW 1), Raghunath Prasad Chaturvedi, Supervisor of the Bank (PW 2), Tejpal Singh, Station Officer (PW 3) and Head Constable Rajendra Prasad Sharma (PW 4). 5. The courts below on an assessment of the entire prosecution evidence convicted the Applicant. The finding recorded in this connection was that the accused had built the new wall by trespassing on the land in the possession of the Allahabad Bank by about 3 feet. The prosecution witnesses themselves deposed that the new wall had been built after trespassing on the land in the possession of the Bank by one yard or so. It was not disputed that the Applicant did not vacate the spot that the encroachment did not come to an end the constructions made by the Applicant were not removed. It is pertinent to advert to these facts because a ground appears to have been specifically raised on behalf of the accused claiming benefit of the amendment in the definition of Section 441 IPC. The plea taken on behalf of the accused was that the complainant had never called upon the accused by a notice in writing to withdraw from the property alleged to have been encroached upon. I have perused the memo of appeal presented in the court below and I find that this plea was expressly taken but I find no discussion of the same in the judgment of the appellate court. The learned Counsel appearing before me has stated that this ground was urged before the appellate court and the same has not been considered in the judgment. 6. On these facts the question arises as to whether the ingredients of an offence u/s 441 IPC have been established so as to warrant the conviction of the Applicant. The learned Counsel appearing before me has stated that this ground was urged before the appellate court and the same has not been considered in the judgment. 6. On these facts the question arises as to whether the ingredients of an offence u/s 441 IPC have been established so as to warrant the conviction of the Applicant. It would be clear that the complainant must be deemed to have acquiesced in the action of the accused in so far as it was confined merely to the replacing the old wall by the new. The assurance held out by the Applicant in this behalf appears to have satisfied the complainant. The question, therefore, is that if while constructing the new wall an area of about a yard was encroached upon, what intention could be really attributed to the accused. The matter can be looked at from two angles. In the first place, whether the initial action of the accused amounted to an offence of trespass and secondly, whether his subsequent act in not removing the alleged encroachment and continuing the entry upon the encroached land constituted an offence as contemplated by Section 441 IPC as amended by the Criminal Laws (UP Amendment) Act 1961 (UP Act XXXI of 1961). The any ended Section 441 IPC reads as follows: 441. Criminal trespass: Whoever enters into or 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; or, having lawfully remained 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 (UP Amendment) Act, 1961, with the intention of taking unauthorised possession or making unauthorised use of 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'. 7. In case of criminal trespass the crucial point always is as to what was the 'intention' of the accused in taking the action with which he was charged. The intention is generally a matter of inference to be drawn from the facts and circumstances of a particular case. 7. In case of criminal trespass the crucial point always is as to what was the 'intention' of the accused in taking the action with which he was charged. The intention is generally a matter of inference to be drawn from the facts and circumstances of a particular case. So far as the initial act is concerned, it is to depend mostly on inference deducible from a set of facts and circumstances. The difficulty in this process of inferring intention may to some extent be said to have been mitigated in so far as the later conduct of an accused person is concerned by amending by means of the Criminal Laws (UP Amendment) Act the definition of 'Criminal trespass' contained in 441 IPC. If the aggrieved person serves a notice in writing calling upon the accused "to withdraw from such property or its possession or use" etc. and the accused fails to withdraw by the date specified in the notice, the conclusion would become irresistible that his indention was to commit criminal trespass. The UP amendment in Section 441 IPC therefore series the useful purpose of lifting the question of criminal intent from the region of speculation to a more concrete and tangible plane. It also furnishes so far as the latter action of the accused is concerned a more objective and dependable test. 8. Still so far as the initial action is concerned, that has even now to be decided on the basis of inference drawn from the surrounding facts and circumstances. For that purpose it is necessary to establish the essential ingredients of the offence namely that the entry into or upon the property into possession of another must be "with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property". It is matter of common experience that mere entry into or upon the property in possession of another is bound to entail some kind of annoyance but the question is whether that per se is enough to constitute the offence of criminal trespass. We are familiar with the general rule that intention as understood in law implies the natural and probable consequences of a person's act. In other words, if the natural and probable consequence of an action was annoyance, such intention may be attributed on general principle to the person responsible for that action. We are familiar with the general rule that intention as understood in law implies the natural and probable consequences of a person's act. In other words, if the natural and probable consequence of an action was annoyance, such intention may be attributed on general principle to the person responsible for that action. On closer scrutiny such ostensible intention may prove illusory for constituting the real ingredients of the offence of criminal trespass. The action is amenable to a dual classification in the sense of a dominant motive of action i.e. the dominant-intention and a subsidiary motive of action or a subsidiary intentional. 9. The authorities on this point appear to be based on either of these two modes of approaching the concept of intention or motive. In some cases it has been held that believing the general doctrine of natural and probable consequences, the aggregate result of the action must be imputed to the author of that action. On the contrary, it has been observed in some cases that the apparent result may be identical with only the subsidiary intention of the person and the real or dominant intention may be different. The cases cited before me adopt one or the other of these two lines of reasoning. Thus, for instance in the case of Keshar Singh and Ors. v. Rex 1950 AWR 19 it was observed by Desai, J. that unless the man committing criminal trespass gave expression of his intention, it would be impossible to produce direct evidence of the intention. The intention has in most cases to be inferred from circumstances. Where the probable consequence of the act alleged to be criminal trespass was to cause annoyance to the persons in possession, it would be presumed that it was committed with that intention. With great respect, it appears to me that an earlier division Bench decision of this Court was not brought to the notice of the learned Judge who decided the case of Motilal Vs. Emperor through Kanhaiya Lal, AIR 1925 All 540 it was held that the actual possession by the person alleged to be intention to be annoyed, insulted or intimidated was essential for an offence u/s 448 IPC. It was observed by Mears C.J. that the words of the section must be closely adhered to and there must be found an intent to cause actual intimidation, insult or annoyance. It was observed by Mears C.J. that the words of the section must be closely adhered to and there must be found an intent to cause actual intimidation, insult or annoyance. A conviction, could not follow merely because one could pronounce with certainty that the accused must have known that his act would, as one of its inevitable incidents, cause annoyance. In that case it was found that the accuseds dominant intention in doing the act complained of was to assert his title and gain and hold possession of the premises as against the complainant. Therefore, the relevant enquiry in the allegations of criminal trespass appears to be as to whether the dominant motive of the accused was to intimidate, insult or annoy etc. The same distinction appears to have been emphasised by the Bombay High Court in Marotrao Ganpatrao Jadhav Vs. The State and Another, AIR 1960 Bom 481 . In that case the landlord was alleged to have committed trespass an a land of which the complainant claimed to be the lessee. The finding was that it was doubtful whether the complainant actually held any lease and the only right which he appeared to enjoy was the right to take away the grass from the disputed land. In disregard of that right the landlord had ploughed the land. It was held that the intent of the landlord could at the most be selfish but it could not be said to be criminal. The, dominant intention of the landlord was held to be to take possession of the field for his own pecuniary advantage and not to insult, or intimidate or annoy the complainant. Raju, J. followed the decision of the Privy Council in Sinnasamy v. The King Cri LJ 52, 173 and relied on the following passage: Entry upon land, made under a bonafide claim of right, however, ill-founded in law the claim may be, does not become criminal merely because a foreseen consequence of 'the entry is annoyance to the occupant. To establish criminal trespass the prosecution must prove that the real or dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the occupant and that any claim of right was a mere cloak to cover the real intent, or at any rate constituted no more than a subsidiary intent. 10. To establish criminal trespass the prosecution must prove that the real or dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the occupant and that any claim of right was a mere cloak to cover the real intent, or at any rate constituted no more than a subsidiary intent. 10. The analysis of the term 'criminal intent' occurring in the Bombay and the Division Bench case of the Allahabad High Court appears to have met with the approval of the Supreme Court in the case of Mathuri and Others Vs. State of Punjab, AIR 1964 SC 986 . Their Lordships overruled the decision in 1950 AWR 19 and approved of the dictum laid down in Motilal Vs. Emperor through Kanhaiya Lal, AIR 1925 All 540 . The facts of the case before the Supreme Court were that though the date in the warrants for delivery of possession in execution of a certain decree in favour of the decree-holder had expired, the complainant made attempt to execute those warrants and in so doing he was met with resistance by the tenants (who were judgment debtors) with the result that the decree-holders men and the police party accompanying them were attacked. The S.D.M. who was with the party declared the attacking mob as an unlawful assembly and called upon it to disperse. All the assailants were proceeded against for offences Under Sections 148, 302/149 and 307/149, IPC. The defence of the accused was that the tenants in possession had resorted to violence to defend their property against criminal trespass and the police had joined hands with the landlords people to execute warrants of possession after the date of the warrant had expired. The question, therefore, arose as to whether the decree holders men were committing the offence' of criminal trespass when they went on the land of which possession had to be taken under the warrants. It was held that in entering upon the property those persons had not actually entered with intent to commit an offence or intimidate or insult or annoy the persons in possession of the property. It was held that in entering upon the property those persons had not actually entered with intent to commit an offence or intimidate or insult or annoy the persons in possession of the property. It was observed that the general rule that every person intends the natural consequences of his act could not be applied 'in toto' to a case of criminal trespass for determining as to whether the intent of committing an offence, or to intimidate, insult or annoy any, person in possession of the property was prevalent. Das Gupta, J. observed as follows: The proposition that every person intends the natural consequences of his act, on which the learned Counsel relies, is often a convenient and helpful rule to ascertain the intention of persons when doing a particular act. It is wrong, however, to accept this proposition as a binding rule which must prevail on all occasions and in all circumstances. The ultimate question for decision being whether an act was done with a particular intention all the circumstances including the natural consequence of the action, have to be taken into consideration. It is legitimate to think also that when Section 441 speaks of entering on property with intent to commit an offence, or to intimidate, insult or annoy any person in possession of the property it speaks of the main intention in the action and not any subsidiary intention that may also be present. Thus, this dichotomy of the term intent into "main intent" and "subsidiary intent" was postulated by the Supreme Court. On the facts of the case it was held that the intention which prompted and dominated the action of the accused persons was to execute the warrants of possession and not to commit trespass. Their Lordships accepted the expositions of the meaning of the word "intent" given in a decision of the Bombay High Court in Bhagwant v. Kedari ILR 25 Bom 202. Their Lordships accepted the expositions of the meaning of the word "intent" given in a decision of the Bombay High Court in Bhagwant v. Kedari ILR 25 Bom 202. The observations of Batty, J. occurring at page 226 of the Report were quoted: The word 'intent' by its etymology seems to have metaphorical allusion to archery and implies "aim" and thus connotes not a casual or merely possible result-foreseen perhaps as a not improbable incident, but not desired but rather connotes the one object for which the effort is made and thus has reference to what has been called the dominant motive, without which the action would not have been taken. 11. Thus, the preponderance of judicial opinion is that unless it is established that the "aim" or the dominant intention of the accused was to commit an offence or intimidate, insult or annoy etc. he cannot be held guilty of the offence of criminal trespass merely with reference to the natural and probable consequences of his action. The rule may be thus stated. So far as the initial action of an accused charged with criminal trespass is concerned, it must be determined from the facts and surrounding circumstances of a particular case whether his intention was to cause annoyance, insult or intimidation etc., but the criterion is not the general ox subsidiary intention to be equated with the natural and probable consequences of an act but the dominant or main intention of the action. 12. Applying these principles to the facts of the instant case it appears that the dominant intention of the Applicant could merely be to take possession of the land belonging to the owner and derive pecuniary advantage by making some constructions. As already observed, the total extent of the trespass comprised of about one yard of land for re-constructing the boundary wall. From this it would not be reasonable to infer that the intention of the owner or her agent could be to commit an offence or intimidate, insult or annoy the tenant in possession. Therefore, taking into consideration the real or dominant intent it would be erroneous to impute ingredients of the offence u/s 441 IPC to the Applicant in the present case. Therefore, taking into consideration the real or dominant intent it would be erroneous to impute ingredients of the offence u/s 441 IPC to the Applicant in the present case. I have already indicated that if the complain, ant had served a notice on the accused asking him to withdraw from the land alleged to have been encroached upon the matter would have been placed beyond controversy. In that event if the accused had not withdrawn, there would be no difficulty in arriving at the conclusion that his intention was to commit an offence or intimidate, insult or annoy the tenant in possession. In the absence of that clinching factor the other facts in the present case did not establish conclusively an offence u/s 441 IPC. 13. For these reasons, I allow this revision and set aside the conviction and sentence of the Applicant. Fine, if paid, shall be refunded to the Applicant.