Criminal Trespass As Under Indian Penal Code
Section 441 to 462 IPC
A. Indian penal code deals with the offence of criminal trespass in 22 sections, commencing from sections 441 to 462. Trespass in common language means to go on another’s property without his permission express or implied or right. Trespass is ordinarily a civil wrong for which the defendant can sue for damages. However, if trespass is committed with a criminal intention, it is treated as criminal trespass punishable under Indian Penal Code.
The object of making trespass a criminal trespass is to keep the trespasser away from the premises and the dwelling houses of private persons so that one may enjoy his or her property uninterrupted by any outsider.
Criminal trespass is defined under section 441 of the Indian Penal Code 1860.
Section 441, Criminal Trespass:
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, is said to commit ‘criminal trespass’.
Section 441 has two limbs. The first refers to an entry into the property in the possession of another with intention to commit an offence or to intimidate, insult or annoy the person in the possession and the second to the remaining in possession having lawfully entered into the property with intention of intimidating, insult or annoying the person in possession of such property, or with the intention of committing such offence.
The essential ingredients of criminal trespass are:
1. There must be unauthorized entry into or upon another’s property against the will of the person in the possession; or
2. An authorized entry lawfully obtained but unlawfully remaining therein; and
3. Such entry or unlawful stay must be with an intention;
a. To commit an offence or
B. To intimidate, insult or annoy the person in possession of the property.
DETAILED ANALYSIS OF THE SECTION:
1. Whoever enters:
The opening words of the section is ‘whoever enters’, meaning that in order to constitute an offence under this section, there must be an actual personal entry upon the property by the accused. Constructive entry, for instance, by a servant will not amount to entry within the meaning of this section.
The section uses the general term ‘property’ hence it is wide enough to cover both movable and immovable property. The accused should enter into or upon property with the intention stated in the provision, to constitute the offence of criminal trespass. However, the word property does not include incorporeal property such as right to collect tolls etc. In the case of Dhanonjoy V. Provat Chandra Biswas, a person had leased out a boat. The accused attacked the lessee of the boat, drove him away and took possession of the boat. He then piled it across the river and collected the money. The Calcutta high court held it would amount to committing of criminal trespass.
3. Possession of another:
For an offence of criminal trespass to be committed, the entry into or upon the property should be in respect of a properly in possession of a person other than the trespasser. The section contemplates actual physical possession to the exclusion of all other persons. In order to constitute criminal trespass, the legality of the possession is not material because the object of provision is to protect possession not the ownership.
The offence of criminal trespass is committed if a person enters upon property in possession of another with the intent to commit an offence or to intimidate or insult or annoy any person in possession of the property. The test for determining whether the entry over property in the possession of another person was made with the intent to annoy is whether causing of, annoyance was the main aim of the entry, that is, the dominant intention which prompted the entry. For establishing the offence it is not merely sufficient to show that the person entering upon the property of another had knowledge that his act would cause annoyance, but, the entry must be with an intention to commit an offence or intimidate, insult or annoy such person. In Mathri Vs. State of Punjab, AIR 1964 SC 986, the accused, along with others, armed with warrants for delivery of possession in execution of several decrees, entered upon the property in possession of another. At the time of the entry, warrants had ceased to be executable in law. The Supreme Court held that the accused and others had entered the property only with the intention to commit an offence or to intimidate, insult, or annoy any person.
5. Remaining unlawfully after lawful entry:
The second part of the section deals with a situation wherein the entry of a person into or upon the property is lawful, but his continuing presence there becomes unlawful. Not only should the continuing presence become unlawful, but, it should be with the intent to intimidate, insult or annoy any such person or with intent to commit an offence. However, if the remaining is unlawful, but not with the requisite intention to commit an offence or to intimidate, insult or annoy the person in possession, then it will not amount to an offence under this section.
In State Of Maharashtra Vs. Tanba Sadadhio Kumbi AIR 1964 Bom 82, the accused was a vice chairman of a school committee. He entered the school and beat up two boys, who had quarreled with his nephew. At that time, the headmaster was not present. Subsequently, the headmaster returned and reprimanded the accused for his behavior. The accused was incensed and he abused the headmaster and tried to manhandle him. The headmaster pushed him back and subsequently the accused left threatening physical harm to the headmaster as soon he came out of the school. The Bombay high court held this case would be covered by the second part of section 441.
PUNISHMENT FOR CRIMINAL TRESPASS IS GIVEN UNDER SECTION 447 OF THE INDIAN PENAL CODE:
Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
Aggravated forms of criminal trespass:
The offence of criminal trespass may be committed under various circumstances which aggravate its magnitude and call for specific penalties in those specific cases. These aggravating circumstances are of two sorts that is:
1. Criminal trespass may be aggravated by the way in which it is committed.
2. It may also be aggravated by the end for which it is committed. Taking into account various factors, the code has classified criminal trespass into five categories and has provided punishment according to the gravity of the offence in question. These are:
a. Criminal trespass under section 441, 447, IPC.
b. House Trespass under section 442, 448, 452, IPC.
c. Lurking (hiding) House – trespass under section 443, 455-460, IPC.
d. House Breaking under section 445, 453-455, IPC.
e. House Breaking by night under section 446, 456-460, IPC.
Therefore, the offence of criminal trespass is directed towards protection of possession and not of ownership. Thus, the essence of the offence of criminal trespass lies in unauthorized entry or an unlawfully retention of the lawful entry with an intention to commit an offence or to intimidate, insult or annoy the person in possession of the property.
It may not seem but house trespass is one of the most commonly invoked sections of IPC in both major and minor feuds between the parties; unless the feud has taken place in public arena. In most of the cases where a feud takes place at a house, the charges come complimentary.
House trespass is treated as an aggravated form of offence of criminal trespass just as section 380 makes theft in a building as an aggravated form of theft. Section 442 defines the offence of house trespass, while section 448 stipulates the punishment thereof. Section 449 to 452 deal with different aggravated forms of house trespass.
Section 442 IPC – House Trespass:
Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit “house-trespass”.
The introduction of any part of the criminal trespasser’s body is entering sufficient to constitute house-trespass.
Essential ingredients of house trespass;
1. The offence house trespass must essentially have all ingredients of criminal trespass i.e.;
(i) There must be an unauthorized entry into or upon another’s property against the will of the person in the possession; or
(ii) An authorized entry lawfully obtained but unlawfully remaining therein; and
(iii) Such entry or unlawful stay must be with an intention;
a. To commit an offence; or
b. To intimidate, insult or annoy the person in possession of the property.
2. The property (building, tent or vessel) entered into or entered upon must be used as a human dwelling or a place of worship or a place for custody of property.
Concept of word ‘building’ and ‘dwelling’ in the section. The word ‘building’ has no fixed meaning. Therefore, the question whether a particular structure is ‘building’ or not and whether it is used as a human dwelling or as a place for the custody is a question of fact.
WHAT CONSTITUTES HOUSE TRESPASS IN THE SECTION?
The explanation attached to the section provides that ‘the introduction of any part of the criminal trespasser’s body into the property amounts to entry, sufficient to constitute an offence of ‘house trespass’. So in Ledga Alias Pachhana Vs. Emperor AIR 1922 NAG 26, it was held that mere pushing in of the shutters of a door, which is not chained or locked will be considered as house trespass.
Section 448 deals with the Punishment for house-trespass:
Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Aggravated forms of house trespass:
Different aggravated forms of house trespass are dealt under section 449 to 451 of the Indian Penal Code and are based on the intent of the person committing house trespass.
House trespass with intent to commit offence punishable with death. The section provides for imprisonment for life or with rigorous imprisonment for term not exceeding 10 years and shall also liable for fine.
House trespass with intent to commit offence punishable with Imprisonment. The section provides imprisonment for term not exceeding 10 years and shall also liable for fine.
House trespass with intent to commit offence punishable with Imprisonment. The section provides imprisonment for term which may extend to two years and shall also be liable for fine and if the offence intended to be committed is theft, the term may extend to seven years.
Therefore, in cases of criminal trespass and house trespass, it becomes crucial for a good criminal defense lawyer to examine prosecution’s complaint and evidences and if at all they are in congruence with the necessary ingredients as required by the Indian Penal Code to constitute the offence.