M. Murtaza Husain, J.
1. This appeal has been filed by a complainant after obtaining special leave from this Court against the order dated 11-5-78 passed by a Magistrate of the 1st Class at Lucknow whereby he has acquitted the respondent of charges under Sections 295 and 448, I.P.C.
2. A Church building, with appurtenant residential quarters and open compound, lies in Mohalla Saadatganj in the city of Lucknow. These premises undis-putedly belong to Methodist Church of Southern Asia. In these premises the respondent was running a nursery school and a charitable dispensary since before the filing of the complaint which has given rise to this appeal. The complainant appellant, D.P. Titus, is the District Superintendent of Methodist Churches in Southern Asia. He filed a complaint with the allegations that in the year 1955 the respondent was appointed Pastor of Saadatganj Church which was consecrated property for worship by the Christians. It was entrusted to the respondent in the aforesaid capacity in order to hold regular prayers in the worship hall of the Church and to maintain the same for religious purposes. It was contended that in contravention of the directions issued to the respondent he was using the premises for secular purposes by opening a nursery school and feelings of Christian community were outraged through the conversion of the church into a secular institution. It was added that the respondent was transferred by the Bishop of Lucknow Annual Conference in 1964 from Saadatganj Church to Lucknow Christian College and Rev. Ghulam Qadir was appointed to succeed him, but the respondent neither handed over charge to him nor vacated the premises. A registered notice was issued to the respondent, but he did not comply with it. It was thus contended that offences under Sections 295 and 448, I.P.C. were committed.
3. The stand taken by the respondent in the trial court was that Saadatganj Church had ceased to remain a Church for worship purposes and it was lying neglected. The respondent was running a nursery school and a charitable dispensary in it and was serving the humanity within the knowledge of the officebearers of Methodist Church in Southern Asia. He maintained that he had neither hurt the religious feelings of the members of Christian community, nor he had committed any criminal trespass over the church property. The validity of the notice issued by the complainant was also questioned by the respondent. The complainant examined six witnesses in support of his case including himself. The respondent examined one Chandrika Prasad in his defence. After considering the evidence on record the learned Magistrate found no force in the allegations of the complaint. He, therefore, acquitted the respondent. Feeling aggrieved by that acquittal, this appeal has been filed by the appellant.
4. The acquittal of the respondent ordered by the learned Magistrate under Section 295, I.P.C. has not been seriously challenged before me and rightly so, because that section contemplates destroying, damaging or defiling any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons, or with the knowledge that any class of persons is likely to consider this destruction, damages or defilement as an insult to their religion. There is no evidence in the present case to make out these ingredients. The respondent is not said to have destroyed, damaged or denied the premises in question. On complainant's own showing he is simply running a nursery school and a charitable dispensary therein. It is not alleged that he had done anything with the intention of insulting the religion of any class of persons. It is needless to point out that the respondent himself is a Christian and was considered by the Bishop of Lucknow Annual Conference to be a fit person to hold the post of the Pastor of a church. It is difficult to believe that a person of his position would do anything to damage, destroy or defile the church property with the intention of insulting the feeling of his co-religionists.
5. The acquittal of the respondent by the learned Magistrate under Section 448, I.P.C. has been assailed before me on behalf of the appellant on the ground that the definition of the offence of criminal trespass contemplated by Section 441, I.P.C. as amended for the purposes of our State by Criminal Law (U.P. Amendment) Act, 1961 has not been appreciated by the learned Magistrate.
6. I have been taken through the entire evidence on record and the reasonings given by the learned Magistrate for acquitting the respondent of the charge under Section 448, I.P.C. The learned Magistrate has acquitted the respondent with a finding that the entry of the respondent upon the disputed premises was perfectly lawful and he was running nursery school and a charitable dispensary in those premises within the knowledge of Methodist Mission since 1955, and had invested a lot of money over it and has been claiming the same from the Church administration. It was, therefore, held by the learned Magistrate that the respondent was continuing in possession of the disputed premises in assertion of his bona fide title.
7. Section 441, I.P.C, as amended by the U.P. Act XXXI of 1961 runs as follows:
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, 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.' The first part of the above section refers to a trespass which is criminal ab initio, whereas the second part refers to an entry which was lawful in the beginning but is subsequently converted into a criminal trespass as the occupier continues with the intention of taking unauthorised possession or is making unauthorised use of such property... or its possession, or use when called upon to do so by notice in writing. In spite of it, if a person is continuing upon the property in bona fide assertion of his right, it is difficult to say that he is guilty of criminal trespass for the purposes of Section 441, I.P.C. It was pointed out by the Supreme Court in Smt. Mathri v. State of Punjab : 5SCR916 and Rash Behari Chatterji v. Fagu Shaw : 1970CriLJ4 that the correct position in law is that in order to establish that the entry on the property was with intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry and that it is not sufficient for the purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult and that this likely consequence was known to the person entering upon the property. In Mangal Sen v. State of U.P. 1970 All WR (HC) 165 it was laid down by an Hon'ble single Judge of this Court that 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 or subsidiary intention to be equated with the natural and probable consequences of an act but the dominant or main intention of the action.
8. The prosecution witnesses have admitted in the present case that the respondent was running a nursery and charitable dispensary in the disputed premises since 1955 and his work was being appreciated by those in power for running the administration of Methodist Mission. Various letters written by the respondent to the appellant show that he has all along been claiming the amount which was invested by him over the disputed premises for serving the humanity. It can, therefore, not be held that the respondent was continuing in possession of the disputed premises with an intent to annoy, intimidate or insult anybody.
9. In State of U.P. v. Raja Ram 1976 Cri LJ 1222 (All) and Mangal Ram Bhagat v. State 1976 Cri LJ 362 (All) it was laid down by this Court that if the accused was continuing in possession of the disputed property in bona fide claim of his right/he cannot be held to be guilty of criminal trespass under Section 441, I.P.C. because the dispute becomes of a civil nature and cannot be said to be a criminal act.
10. In the present case also the respondent is continuing in possession of the disputed premises in assertion of his bona fide claim and, therefore, the learned Magistrate was perfectly justified in coming to the conclusion that he was not committing an offence of criminal trespass as defined by Section 441, I.P.C.
11. One more technical obstacle in the way of success of appellant's complaint was, though the same was not considered by the learned Magistrate, that the notice contemplated by Section 441, I.P.C, as amended by U.P. Act XXXI of 1961 requires that the notice shall specify a date by which the person called upon to vacate has to vacate the property. The notice which is on record of the present case gave only one week's time to the respondent to vacate the disputed premises and did not specify a date. In Ram Swarup v. State 1977 All Cri C 165 and Mansingh v. State 1979 Cri LJ 1433 (All) this Court has observed that if a notice given under Section 441, I.P.C. simply prescribes a particular period and does not specify a particular date by which the accused has to leave the property it is not a valid notice for the purposes of Section 441, I.P.C. These observations fully apply to the facts of the present case.
12. I am, therefore, of the opinion that on account of the defect in the notice issued to the respondent by the appellant and also on merits as the respondent was continuing in possession of the disputed property in bona fide assertion of his claim, the complaint of the appellant was liable to be dismissed. The impugned order of acquittal, therefore, calls for no interference by this Court. Consequently this appeal is dismissed and the order under appeal is upheld.