P.N.Goel, J. - (1.) Decision of this appeal preferred by Chhidda Lal against the order dated 30-7-1979 passed by the 1st Additional Sessions Judge, Ghaziabad in Criminal Appeal No. 91 of 1978 acquitting respondent Bal Swarup, real brother of the appellant of an offence punishable under Section 448, I.P.C. depends upon an interpretation of Section 441, I.P.C. as amended in the year 1961' in the State of Uttar Pradesh.
(2.) Section 441, I.P.C. defines 'Criminal Trespass'. After the amendment of the year 1961, Section 441 runs into two paragraphs which are reproduced below: 1. 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, 2. or having entered into or upon such property, whether before or after the coming into force of the Criminal Law (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'.
(3.) It is undisputed that the first paragraph of this section is not applicable to the present case. The case of the appellant hinges on the second paragraph. The second paragraph can easily be divided in two parts, (1) whoever having entered into or upon such property (such property means property in possession of another), with the intention of taking unauthorised possession or making unauthorised use of such property, and (2) 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.;