Trespass is an offence under both Civil law and Criminal law. According to Percy Henry Winfield, “Trespass to land is the name given to that form of trespass which is constituted by unjustifiable interference with the possession of land”.The term trespass is generally viewed as a civil wrong which simply means interference with another’s possession of land without his consent. But if the offence is done with a criminal intention then it will amount to an offence under criminal law. Chapter XVII of the Indian Penal Code, 1860 which deals with offences against property cover criminal Trespass and all its aggravated forms.
Section 441 of Indian Penal Code defines Criminal Trespass as 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, is said to commit criminal trespass.
Ingredients of Criminal trespass
- Entry into or upon the property.
- The property must be in possession of another person other than the accused.
- If the entry of the accused is lawful then unlawfully remaining in the property.
- The accused must have made entry or remained in the propertyunlawfully with the intention-
- To commit an offence; or,
- To intimidate, insult or annoy any person in possession of such property.
Entry into or upon property
As the section states ‘whoever enters into or upon property’ simply means that entry into a property by any person without any lawful justification will amount to trespass. It is to be noted here that the entry must not be constructive like entry of a servant, in such a case it will not amount to any offence. The element of force is not necessary to constitute criminal trespass.
The property must be in possession of another person other than the accused
To constitute an offence under this section, the property must be in an actual possession of another person other than the accused himself. The property can be either moveable or immovable property. The offence can be only committed against the actual possessors of the property and therefore it is not necessary for the possessors of the property to be the owners as well. The complainant may file a case of criminal trespass as possessors of a property even though the trespasser is the owner itself. It is not necessary for the possessors to be actually present at the property and the offence can be committed even in their absence if the entry is done by a criminal intent to do any act mentioned in the section.
If the entry of the accused is lawful then unlawfully remaining in the property
Even if the entry of a person into a property is lawful but he remains in the property unlawfully with the intention to do any such act mentioned in the section 441 of IPC, such person would be liable for the offence of criminal trespass.
Intent to commit an offence or to intimidate, insult or annoy any person in possession of such property
For conviction under this offence intent of the accused is essential. The intention can be either to commit an offence or to intimidate, insult or annoy any person in possession of such property. Without intention the offence cannot constitute criminal trespass and the act will be punishable as civil wrong. In order to establish that the entry on the property was with the intent to annoy, insult or intimidate the possessor, it must be proved before the court that such act was the main aim of the entry and merely proving that natural consequence of the entry was likely to cause annoyance, intimidation and insult and the accused had the knowledge of this is not sufficient.
Section 447 of IPC describes punishment for Criminal trespass.
Whoever commits criminal trespass shall be punished with:
- Imprisonment 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 aggravated in several ways. It may be aggravated by the way it is committed and by the end for which it is committed. The following are some of the aggravated forms of Criminal trespass.
- House trespass
The offence of House trespass is provided in section 442 which states that whoever commits criminal trespass by entering into or remaining in the 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”. Therefore property is the difference between criminal trespass and house trespass. The section further explains that the introduction of any part of the criminal trespasser’s body into another property is sufficient to constitute house trespass. It is important to note here that the entering into any open land surrounded by a boundary of wall or trespass will not amount to house trespass since it can only be committed in respect to any ‘building’, ‘tent or vessel’ which is used as a human dwelling or a place used for the custody of property.
Punishment for House trespass [section 448]
Whoever commits House trespass shall be punished with:
- Imprisonment for a term which may extend to one year; or,
- With fine which may extend to one thousand rupees; or,
- With both.
- Lurking House-Trespass and Lurking House-Trespass at Night
Section 443 deals with the offence of lurking house-trespass. It states that whoever commits house-trespass having taken precautions to hide such house-trespass from someone who has a right to exclude or eject the accused from the building, tent or vessel that is the subject of the trespass, is alleged to commit “lurking house-trespass”. The main difference between house trespass and lurking house-trespass is that within the latter the suspect must have taken some steps in order to hide his or her identity from the possessor of the property.According to Section 444, whoever commits Lurking House trespass after sunset and before sunrise, is said to commit “Lurking House-Trespass at Night”.
Punishment for Lurking House-Trespass or House-Breaking [section 453]
Anyone who does Lurking House trespass or House-Breaking shall be admonished with:
- Imprisonment for a term which may extend to two years and shall also be liable to fine.
Punishment for lurking house-trespass or house-breaking by night [section 456]
Anyone who does Lurking House-Trespass by night or House-Breaking by night shall be punished with:
- Imprisonment for a term which may extend to three years and shall also be liable to fine.
- House-Breaking and House-Breaking by night
Section 445 delays with the offence of House-breaking which is another aggravated form of criminal trespass. As per the section anyone is alleged to “house-breaking” who commits house trespass if he affects his entrance or exit from the house or any part of it in the following six ways:
- Entry or quitting through a passage created by himself or by the abettor.
- Any passage not supposed to be used for entry or exit.
- A passage opened for committing House trespass that the occupier of the House had not intended to be opened.
- To enter or quit through a passage by opening a lock.
- He makes his entrance or exit by using criminal force or committing an assault or by threatening any person with assault.
- He enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house-trespass.
The first three steps deals with entry or exit which is affected by means of a passage which is not ordinary. The last three steps deals with entry or exit from a property by force.
- A does house-trespass by creating a hole through the wall of Z’s house, and putting his hand through the aperture. This is house-breaking.
- Z commits house-trespass by crawling into a ship at a port-hole between decks. This is house-breaking.
- B does house-trespass by entering Z’s house through a window. This is House- breaking.
According to Section 446 anyone who does house-breaking after sunset and before sunrise, is said to commit “house-breaking by night”.
The punishment for House-Breaking and House-Breaking by night is same as that of Lurking-House-Trespass and lurking house-trespass by night specified under section 453 and 456 respectively (mentioned above in the offence of Lurking House-Trespass).
- Ratanlal and Dhirajlal, 36th edition, Indian Penal Code.
- Indian Penal Code, 1860.
Shwe Kin v. Emperor, (1905) Cr LJ 415
Dhanna Ram v State of Rajasthan, (2000) Cr LJ 1204 (Raj)
Veerathai v Ramaswamy Iyengar, AIR 1964 Mys 11
Mathri v. State of Punjab, AIR 1964 SC 986
Ghulam v. CrownAIR 1923 Lah 509
Budha v. Emperor, AIR 1916 Lah 425
This blog is written by Alok Dubey, Asian Law College.
Some more of Alok BLOGs,
- Minerva Mills Case (Case Summary)
- The Constitution (103rd Amendment), Act 2019
- Defamation Laws in India
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