State Of U.P. vs Raja Ram on 18 September, 1975
11. It was urged on behalf of the State that the question be re-referred to a Full Bench because according to the learned Counsel for the State, the answer given by the Division Bench does not appear to be sound. The contention put forward on behalf of the State is not without force. It was pointed out that a perusal of Section 441 of the Indian Penal Code will show that the words used in it are "in possession of another" and not "in actual physical possession of another". The words appearing in Section 441 of the Indian Penal Code were interpreted to mean "actual physical possession" because it was found that it was not possible for the trespasser to intimidate, insult or annoy a person not in actual physical possession and only in constructive possession of the property trespassed upon. While answering the question referred to it, the Division Bench in support of its answer, dealt with the question in great detail and repeating the same would serve no purpose. If I may say so with respect, I agree with the interpretation of the words 'property in possession of another' appearing in Section 441 of the Indian Penal Code as it stood before the Criminal Laws (U. P. Amendment) Act, 1961 (Act XXXI of 1961) came into force. In my opinion, the answer recorded by the Division Bench requires reconsideration as regards the portion added to the original Section 441 of the Indian Penal Code by the said amendment. Before the amendment, to quote the Division Bench, the essential ingredients for 'criminal trespass' as laid down in Section 441 of the Indian Penal Code were: