H.N. Kapoor, J.
1. This reference has been made by the Addl. Sessions Judge, Dehradun, by the order dated 21-12-1973 in Criminal Revision No. 47 of 1972 with the recommendation that the conviction and sentence of die applicant under Section 448, I. P.C. be quashed. The applicant was prosecuted under Section 448, I. P.C. on a complaint filed by Sri Sheel Chand Jain, Karinda of Narendra Welfare Trust. The Trust had purchased certain properties including the property in dispute from Smt. Satbala Jain. Smt. Satbala Jain had purchased that property from one Musaddi Lai in the year 1963. Admittedly, the applicant was in possession of the property in dispute from the time of Musaddilal as he was related to him. The case of the complainant was that after purchasing the property on 2-7-1971 the Chairman of the Trust served a notice dated 22-7-1971 on the applicant to vacate the rooms within a period of one week. He had promised to do so but he then did not vacate the property. Hence a complaint was filed under Section 448 read with Section 441, I. P.C. as amended by Uttar Pradesh Criminal Laws (U.P. Amendment), Act, 1961.
2. The defence of the applicant was that he and his father had made certain pucca constructions on the land with the permission of Musaddilal and as such they were lawfully in possession and were not liable to be ejected.
3. The dispute is clearly of civil nature. Section 441 has been substituted as follows by U.P. Act XXXI of 1961:-
441. Criminal Trespass:-i 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, where 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.
4. The present case does not fall under the second clause as there is no allegation that the applicant had entered into such property with an intention of taking unauthorised possession or making unauthorised use of such property. It is not disputed that he had lawfully entered into possession of such property. He could be guilty under Section 441 only 'if he had unlawfully remained in possession with intent thereby to intimidate, insult or annoy any such person or with intent to commit an offence'. It has not been proved that he had committed any such act. The prosecution under Section 448, I. P.C. was clearly misconceived.
5. The reference is accepted. The conviction and sentence of the applicant are quashed and he is acquitted of the offence with which he was charged. Fine if already charged shall be refund.