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. 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 which it is committed. It may also be aggravated by the end for which it is committed. 9. In the case of Govind Prasad (1879) 2 ILR All. These aggravating circumstances are of two sorts. Criminal trespass may be aggravated by the way in which it is committed. It may also be aggravated by the end for which it is committed. 9. In the case of Govind Prasad (1879) 2 ILR All. 465 Straight, J. observed: ...the unusually vague and elastic language used in Section 441, which, if not closely scrutinized and strictly interpreted, might lead to its application to sets of facts or circumstances, for which it, was never intended by the legislative authorities who framed it. For it is easy enough to conceive multitudinous cases, some approaching the verge of absurdity that would fall within the letter not the spirit of the section and which no one would for a moment consider fit subject even for civil proceedings, much less for a prosecution in a criminal court. To lay down any rule, as to the extent to which its operation should be limited, is scarcely possible, but it is plain that its scope must be confined within those bounds that common sense and sound reason dictate. We find ourselves in respectful agreement with this view. The section has three essential ingredients: 1. Entry into or upon property in the possession of another, 2. If such entry is lawful, then unlawfully remaining upon such property, and 3. Such entry or unlawful remaining must be with intent, (i) to commit an offence, or (ii) to intimidate, insult or annoy any person in possession of the property. 10. It may be noticed that for the application of Section 441, it is necessary that there should be entry into or upon property in possession of another. Such entry if lawful, then the person should remain unlawfully upon such property and with an intent to commit an offence, or to intimidate, insult or annoy the person in possession of the property. In terms of the section, therefore, if the entry is lawful or unlawful, but there is no intent to commit an offence or to intimidate, insult or annoy the person in possession of the property, no criminal trespass is made out. 11. In terms of the section, therefore, if the entry is lawful or unlawful, but there is no intent to commit an offence or to intimidate, insult or annoy the person in possession of the property, no criminal trespass is made out. 11. It is pertinent to notice here the relevant provisions of the Criminal Laws (UP Amendment) Act, 1951, (UP Act No. 31 of 1961) which was published in the UP Gazette Extraordinary, dated the 13th November, 1961, the statement of objects and reasons annexed to the Act says: Criminal trespass as defined in Section 441 of the IPC includes only entering into or upon property in the possession of another with the intent of committing an offence or intimidating, insulting or annoying any person in possession of such property. Entering into or upon property in the possession of another with the intent of remaining in the unauthorised possession or making an unauthorised use of the pro-party does not fall clearly within the purview of existing definition. It is accordingly proposed to amend these sections in order to meet the above requirements. Section 2 of the aforesaid Amendment Act reads: For Section 441, IPC, 1860 the following shall be substituted: 441. Criminal Trespass--Whoever enters into or upon property in the 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 (UP 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 trespass. 12. 12. The second paragraph of the amended section, therefore, makes it evident that if a person 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, 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, he is said to commit criminal trespass. In other words, the amendment has added one more provision to the definition of the criminal trespass, namely, that even where a person has entered into or upon property in possession of another, pot with 'an intent to commit an offence or lo intimidate, insult or annoy any person in possession of such property, but with the intention of taking unauthorised possession or making unauthorised use of such property, if he fails to withdraw from such property or its possession when called upon to do so, after service of notice in writing duly served upon him, is said to commit criminal trespass. 13. The question which falls for consideration, therefore, both in view of the original Section 441 and the amendment effected to it by the UP Act, is what is the meaning to be assigned to the term property in possession of another, because in the amended section the original Section 441 has been incorporated in its entirety in paragraph 1 and paragraph 2 of the amended section speaks of such property which has been referred to in paragraph 1. 14. The amended section, therefore, does not solve the difficulty which confronted the learned Judge and it is necessary to give judicial interpretation to the term possession as it finds place both in paragraphs 1 and 2 of the, amended section in the light of the judicial pronouncements. 15. In Moti Lal v. Emperor (supra) a Division Bench of this Court consisting of Mears, C.J. and Mukerji, J. inter alia observed as follows: First of all it is to be remarked that intimidation, indult or annoyance can in most cases arise only if the premises are in fact in the actual physical possession of some body, as for instance, the actual owner, his wife, servant, agent, licensee or other person. Their Lordships, while arriving at this conclusion referred to the case of King Emperor v. Govind Prasad ILR 2 All. 465, Kunji Lal v. Kirig Emperor (1917) 12 ALJ 151, Vallappa v. Bheema ILR 41 Mad. 156 and Emperor v. Gaya Bhar ILR 38 All. 517. The dictum which was laid down in this case, therefore, is that the premises should either be in the actual physical possession of some body or through his servant, agent, licensee or other parson. This case, to our mind, is not an authority for the; proposition that the property should be in actual physical possession of the owner himself. On the other hand, it clearly lays down that it can be in possession of the owner even through an agent. 16. Section 27 of the IPC (sic) pertinent to the questions in issue, reads: When property is in the possession of a person's wife, clerk, servant, on account of that person, it is in that person's possession within the meaning of this Code. Explanation--A person employed temporarily or on a particular occasion in the capacity of a clerk, or servant, is a clerk or servant within the meaning of this section. The view taken by the Division Bench in Motilal's case is, therefore, in accordance with the definition envisaged u/s 1 of the IPC. 17. In Tok Gyi v. Emperor 1916 Cri LJ 378) a Single Judge of the Burma High Court has held that the possession contemplated is actual possession and in my opinion, is not merely a power of control. 18. In Basant Kumar v. The State AIR 1953 Cal. 118) it has been held by a learned Judge that "the possession mentioned in Section 441 should be understood as meaning actual physical possession which includes the right to eject or exclude another person." 19. A similar view was taken by the Calcutta High Court in the case of the The State Vs. Abdul Sukur, AIR 1960 Cal 189 and it was held that a person in constructive possession is not contemplated by Section 441. In Bismillah v. Emperor (1928) 29 Cri LJ 745 Oudh Chief Court has held that the offence of criminal trespass can only be committed against a person who is in actual physical possession of the land in question. Abdul Sukur, AIR 1960 Cal 189 and it was held that a person in constructive possession is not contemplated by Section 441. In Bismillah v. Emperor (1928) 29 Cri LJ 745 Oudh Chief Court has held that the offence of criminal trespass can only be committed against a person who is in actual physical possession of the land in question. In AIR 1942 104 (Oudh) , Agarwala Justice, however, took the view that a person may be in physical possession of a property, or he may be in possession through his licensee or tenant or agent. It will be noticed that that is the view which was taken by the Division Bench in Motilal's case. It is, therefore, evident that the Allahabad view finds support from the learned Single Judges' decisions of Burma, Oudh and Calcutta High Courts. 20. A learned Single Judge of the Madras High Court, has, however, taken a contrary view in the case of Sheikh Haider Sahib v. Sabjan Sahib (1932) 33 Cri LJ 145 and has held that constructive possession is included in the word "possession" in Section 441 of the IPC and a trespasser cannot be heard to say it could (sic) because the not nave caused (sic) party (sic) trespassed. The Allahabad case of Govind Prasad was noticed but distinguished. 21. It is, therefore, obvious that the consensus of judicial opinion is in favour of the view propounded by the Division Bench of this Court in Motilal's case. It must be observed that the Division Bench has nowhere held that the owner must be personally in physical possession of the property. On the other hand, it is clearly provided that such physical possession may be even at his instance by his wife, servant, agent, licensee or other, person. In view of the preponderance of the judicial opinion in favour of the Allahabad view which, to our mind, is in consonance with reason and justice, we are unable to agree with the view taken by C.B. Kapur, J. in the Himachal Pradesh case and the view adopted by the Madras High Court in the case of Sheikh Haider Sahib v. Sabjan Sahib (supra). 22. 22. Our answer to the question referred to us is as follows: In order to constitute possession within the meaning of Section 441 of the IPC, the complainant must be in actual physical possession of the property either by himself or through his wife, servant, agent, licensee or other person. 23. Before parting with this case we consider it necessary to observe that the property in dispute is a public road which vests in the State. It is maintained by the State at its expanse. It is put in public use for the prescribed purpose. Whether in these circumstances, the complainant can or cannot be held to be in possession of the road in order to entitle him to file the complaint against the Respondent, is a question which shall be determined by the learned Single Judge, while hearing the appeal. 24. Let the papers of the case with our opinion be placed before the learned Single Judge for disposal of the appeal.