JUDGMENT B.B. Misra, J. - This appeal was filed by the State against the order of the Judicial Magistrate, Handia, Allahabad acquitting the respondent for an offence under section 447 Indian Penal Code, who was prosecuted with the allegation that he had constructed a house within the boundary of G. T. Boad N. H. II on the east to mile no 476 one furlong, without the permission of the P. W. D. It is said that he was also served with a notice to remove the construction in dispute. But he did not do so. The respondent denied to have made any encroachment. His case was that he had constructed the house with the permission of the Pradhan of Bhaironpur. 2. The Magistrate held that the construction had been made within the limits of the road boundary. He however, acquitted the respondent on the ground that actual possession should have been proved, which had not been done. When the case came up before me originally I found that there was some conflict of decisions on this point. I, therefore, referred the matter to a larger Bench. The Division Bench has now sent back its decision. While laying down that "In order to constitute possession within the the mean ting of section 441 of the Indian Penal Code, the complainant must be in actual physical possession of the property either by himself or through his wife, servant, agent, licensee or other persons", it observed that the property in dispute was a public road which vests in the State and was maintained by the State at its expense. It is put in public use for the prescribed purpose. It left open for the Court to decide as to whether in the above circumstances the complainant (Government) could or could not be held to be in possession of the road in order to entitle him to file the complaint. This matter does not present any difficulty to me. Obviously, the road upon which the respondent had made encroachment was a public road and was being maintained by the State. Obviously, therefore, if any person encroached upon any portion of it he would be guilty of the offence of criminal tespass, under section 441 Indian Penal Code. The respondent was, therefore, guilty under that section. 3. The appeal is allowed. Obviously, therefore, if any person encroached upon any portion of it he would be guilty of the offence of criminal tespass, under section 441 Indian Penal Code. The respondent was, therefore, guilty under that section. 3. The appeal is allowed. The opposite party is convicted under section 447 India label Code and sentenced to a fine of Rs. 200/- in defsult, one month's rigorous imprisonment.