To a layman, the word ‘trespass’ at most will insinuate – being present on property belonging to someone else’s without his consent. Since time immemorial, humans have yearned to enjoy their property barring disturbance from any external element. It is one’s right to enjoy his property to the fullest barring any intrusion and when someone commits an act to curtail such right of an individual, he commits an offence dealt under the title of Trespass. Thus the essence of criminalising trespass lies in the idea of enabling the owner to exercise and protect the control over his property. Ordinarily, trespass is considered to be a civil wrong, the punishment for which includes fine for damages, however, when criminal intention accompanies such a trespass, it amounts to criminal trespass and attracts penal liabilities.
Table of Contents
Trespass
Trespass in simple sense means – performance of an unlawful act or a lawful act in an unlawful manner to incur injury to the property or person of another person. Trespass mainly constitutes of two types:
- Civil trespass
- Criminal trespass
Respecting the boundaries of the topic, we shall proceed further with Criminal trespass with faint difference between the two.
Criminal Trespass
Black’s Law Dictionary defines ‘Criminal Trespass’ as ” A person who enters on the property of another without any right, lawful authority or an express or implied invitation or license”.[1] In India, the Indian Penal Code, 1860 covers the offences and punishments pertaining to Criminal Trespass.
Section 441 of the Indian Penal Code, 1860 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”. [2]
Thus Section 441 of the Indian Penal Code, 1860, elucidates that, a person who enters into the property which is in possession of another person with an intention to insult, annoy or to commit an offence against the person or property of the person in possession is said to have committed the offence of ‘criminal trespass’. In the same manner, if a person lawfully enters into the property of another but stays there with an intention thereby to commit an offence, insult or intimidate such person is charged under Section 441 of the IPC for ‘criminal trespass’. [3]
Evident from the aforesaid definition, it is prudent to infer that the offence of criminal trespass is sundered into two parts;
- The first being the act of entering into the property in possession of another person without his consent (express or implied) with a criminal intent.
- The second part refers to that act in which a person enters the property possessed by another person, albeit the entry is lawful per say, but the intention to stay on the property is mala fide or criminal.
Illustration
By now we have understood that, if one’s right to enjoy his property (be it moveable or immovable nature) is infringed due to criminal acts of others such as assault or theft, the Indian Penal Code serves as remedy to the injured. For instance,
- If Amit unlawfully enters Yadav’s house without any permission granted by Yadav, for the purpose of stealing his antique radio, Amit would be liable for theft and criminal trespass.
- If Amit for the purpose of stealing Yadav’s antique radio, entered his property at night or assaulted Yadav in order to enter his premises, this would be considered as an aggravated form of criminal trespass. This would imply a greater liability on Amit.
Ingredients of a Criminal Trespass
Entry
To attract the charges of criminal trespass under Section 441 of the IPC, it is imperative for the trespasser to be a physical person and his entry into the property of another needs to be an actual one. It must also be noted that on instances of the constructive entry, wherein authorisation has been provided to enter the property of the person, such as, a servant, cannot be construed to trespass, even though there was no possession in law, there was possession in fact.[4] In certain situations, a man may be guilty of criminal trespass without personally entering upon the property of the other person. Say if ‘X’ instigates ‘Y’ to trespass the property of ‘Z’ in order to steal from him. As was stated in –
Emperor v. Ghasi: It was held that a man may be guilty of criminal trespass on the land of another without ever personally setting foot on the land, for instance if he causes others to build on the land against the wishes and in spite of the protest of the owner of the land.[5]
Property & its possession
The word ‘property’ under this Section constitutes a moveable as well as immovable and corporeal property, into or upon which, one is capable of entering. One may be convicted not only of walking onto the land belonging to someone else, but also if he gets into a car or boat belonging to someone else. [6]. The possession of such property is also considered to be of paramount importance. Under this section both – the actual as well as constructive facets or concept of possession of property are embraced. [7] When possession exists in law but not in fact, it is termed as constructive possession. What is to be noted is that ownership is not in the question here, just the possession of the property at the time of offence is material. In Dakamarri Kannayya v. Vadali Venkatesam[8], what was alleged to be a trespass was done on a piece of vacant site with the complainant devoid of its actual possession.
In cases covering entry in or upon the property of another person with intent to cause annoyance or commit an offence, the presence or absence of the person against such intention is held irrelevant. [9] What is not included within the ambit of property under the section is the incorporeal property, property which can not be touched, such as right to collect tolls. [10] Also the states are empowered to consider certain acts that fall within criminal trespassing laws, such as hunting on someone else’s land, however a proper notice needs to be provided.
Criminal Intent
An ‘intent’ or precisely a ‘criminal intent’ is a sine qua non for an act to be considered under criminal trespass. A mere unlawful presence of a person on property possessed by someone does not attract criminal trespass unless it is proven that the accused trespasser had entered the said premises with an intention to insult, to cause annoyance or harm to the said possessor. Presence of mens rea here is as profound as it is in other crimes. If one fails to put forth that – the dominant motive of the alleged trespasser was to commit the crime, or that he was aware of not being permitted to enter or be upon the property in question, which he still decided to go on, will not attract criminal trespass. In such cases, the knowledge of a person who is accused of such trespassing is inferred when there is a fencing he jumps upon or a sign board saying ‘no trespass’ he neglects to go on the said property. In a similar manner, the test to determine the intention behind the person’s entry depends upon his aim at the time of such entry. It is mandatory for the court to ensure the satisfaction over the aim of entry being to annoy, intimidate or insult the person in possession of the said property. It is not sufficient to merely present that annoyance, intimidation or insult was likely the natural consequence of the entry which the person entering was aware about. [11]
It is also pertinent to note that ‘staying in’ or ‘entering’ a public place also attracts criminal trespass. One can be guilty of trespass in a public place if he/she enters or stays within such place after the closing time. However, it needs to be proven that such unlawful entry was made with a criminal intent as it was decided in;
Chelpark Company Limited v. The Commissioner Of Police, Madras and ors.: In this case, it was held that – a proof of the intention to commit an offence or to intimidate, insult or annoy the employer on the part of workmen staying unlawfully within the factory premises was required to consider it as criminal trespass. [12]
Some other examples of determining a criminal intent can be inferred from the following cases:
Punjab National Bank Ltd v. All India Punjab National Bank Employees’ Federation
In this case, the court considered that the entry of employees on strike into the bank was with an intention to put pressure on the bank management to pay a heed to their demands and since the intent to insult, harm or annoy any of the superior officers was absent, it would not amount to criminal trespass. It was also pointed out by the Hon’ble court that had the said strikers stormed into the offices of the superior staff, with intent to annoy any such member, it would amount to criminal trespass. [13]
Ramzan Mistry & Ors v. Emperor
It was held that the intention of the accused was not probable but an actual one needs to be proven. It is insufficient to show that the alleged trespasser possessed the knowledge that his entrance would lead to annoyance, it has to be proved that there was an intention to intimidate, insult or annoy or to commit an offence against such person for a criminal trespass to take place. [14]
Isaac Isanga Musumba and Others v. State of Maharashtra and Others
The case revolved around the allegations made by the complainant against the petitioner-accused who was an Ugandan National. It was alleged that the accused had demanded 20 million dollars by illegally entering into the head office of their company, claiming to have International arrest warrants against the complainants and upon failure to pay the requisite some the complainants would face dire consequences. The court held that it was a busy business transaction between the petitioner and respondent and that the petitioner visited the premises of the complainant to make a demand towards their dues and hence a case of criminal trespass under section 441 of the IPC against the petitioner for such visit cannot be made. [15]
Punishment for Criminal Trespass
In order to provide a sense of satisfaction and security to a person so that he can enjoy his private property to the fullest, criminal trespass has been included as a criminal offence under section 441 of the Indian Penal Code, 1860. For a person who is guilty of criminal trespass, Section 447 of the IPC avails a punishment of imprisonment of either description which may extend to three months or may be held liable to pay fine which may extend to INR 500 or both. [16]
Civil Trespass and Criminal Trespass
Civil and Criminal trespass have a faint difference among them. For a person to attract the charges of civil trespass, he only needs to be present on property belonging to someone else but ‘unlawfully’. Such an offence can be done away with by paying the damages.
But, when such an act of unlawful presence on property belonging to someone else is accompanied by an intent to commit a criminal offence, or to intimidate or insult or annoy such person who possesses the property, he is said to have committed the act of criminal trespass. Criminal trespass is of various degrees and its punishment includes imprisonment &/or fine.
Aggravated forms of Criminal Trespass
Occasions, magnitude and penalties of criminal trespass may vary from offence to offence. Criminal trespass may be considered as aggravated considering the time & purpose of trespass and nature of the property trespassed. Such cases are dealt under specific Sections of the Indian Penal Code with specific punishment prescribed.
House-Trespass(Sec- 442)
The state ought to provide its subjects due assurance of a safe environment in their homes & as such trespassing into the property where such subjects reside and keep their belongings is considered an aggravated form of criminal trespass.
Section 442 of the IPC, 1860 explains house trespass as-
When a person as whole or a part of his body enters into or remains within any building, tent or vessel used by another person as a dwelling, place of worship or as a place of custody of the property, he is said to have commited house trespass.[17] It is not compulsory for a place of human developing a to b e a permanent residence of the defendant. Temporary residences such as school or railway platforms also count as a human dwelling. What constitutes a building shall depend upon what is ordinarily understood by the term. Hence to consider a particular structure as a building or place of dwelling within the ambit of Sec 442 of the IPC, facts, evidence & material of the case are to be analysed. [18] It must have a semblance of dwelling, mere fence cannot amount to human dwelling.
Punishment (Sec 448)
If the defendant is guilty of house-trespass, Sections 448 of the IPC provides for such a person an imprisonment for a term not exceeding 1 year or a fine which may extend up to INR 1,000 or both. [19]
Lurking House – Trespass (Sec- 443)
Lurking house-trespass is an aggravated form of the house-trespass. When an offence of house trespass is committed with precautions to conceal such offence from the person who possesses the right to eject such trespasser from the building or such dwelling place which is the subject of trespass, it is dealt under Section 443 of the IPC as lurking house-trespass. However, it must be eminent that the accused trespasser has taken active steps to conceal his presence. [20] Also such steps to conceal the house-trespass have to be taken before committing the house trespass & as such if a person makes an effort to hide himself after committing house trespass on seeing the resident of the house, it is wrong to presume that such precaution has been taken beforehand and as such does not attract lurking house trespass.[21] The same was reiterated by the High Court of Delhi in the case of Tilak Raj v. State (NCT) of Delhi. [22] So an active means taken by the trespasser is the essence of the lurking house-trespass in addition to other elements of the general house trespass.
In Lokesh Kumar v. State (NCT of Delhi) And Another[23], setting aside the contention of complainant according to which the accused lurking house trespasser was seen jumping from the balcony and running away while the door of the balcony was open despite being closed by the complainant himself, the court observed that the prosecution in such cases does not only has to establish house-trespass but has also to prove that the accused has taken precautions to conceal such house-trespass from some person who has a right to exclude or reject the trespasser.
Since no such evidence of precaution to conceal such house-trespass was put forward, the offence of lurking house trespass was not made by the court.
Punishment: Section 453 of the IPC, 1860 punishes a person who is guilty of lurking house-trespass with imprisonment of either description which shall not exceed 2 years and shall also be liable to fine.
Lurking House-Trespass by Night (Sec- 444)
Section 444. Lurking house-trespass by night:
Lurking house trespass by night is an aggravated degree of simple lurking house-trespass. When lurking house trespass is committed after sunset & before sunrise, it attracts lurking house-trespass by night under section 444 of the IPC. It is pertinent to mention that the term night covers a period after sunset & before sunrise. If a house trespass is committed during the night, it does not count as lurking house trespass by night. [24] For it needs to possess all the elements of a ‘lurking house trespass’ and needs to be committed after sunset & before sunrise.
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Punishment (Sec 456)
The aggravation considered in committing lurking house trespass by night is clearly evident in its punishment. A person who commits lurking house trespass by night shall be punished with imprisonment which may extend for three years and fine. Hence the maximum punishment given in lurking house trespass by night is one year extra to that of simple lurking house trespass under section 453. [25].
House Breaking: (Sec- 445)
House-trespass would become house-breaking if the trespasser effects his entrance into the house or any part of it or if being in the house or any part of it for the purpose of committing an offence or having committed an offence therein he quits the house or any part of it in any of the following ways:
- If such house trespasser quits through or enters via a passage by himself, or by an abettor of the house trespass, so as to commit such house-trespass.
- If the house trespasser enters or quits via any passage which is not intended by any person as an entrance for humans, other than the house trespasser himself or an abettor of the offence; or if he enters through such a passage to which access has been gained by scaling or climbing over any wall or building.
- If the house-trespasser enters or quits by means a passage which has been opened by him or any abettor of the house-trespass so as to commit house-trespass by any means by which such passage was not intended by the occupier of the house to be opened.
- If in order to commit house-trespass or after committing house-trespass, the said trespasser enters or quits by opening any lock.
- If he enters or quits by using criminal force or committing an assault or by threatening any person with assault.
- If the said house trespasser enters or quits through such a passage the fastening of which he is aware has been done against such entrance or departure and has unfastened it by himself or by an abettor of the said house-trespasser.
Explanation: Any out-house or building occupied with a house, and between which and such house there is an immediate internal communication, is part of the house within the meaning of this section.[26]
As such, breaking open of a cattle-shed which serves as storage for agricultural implements would amount to house-breaking. [27] Further entering the house using a window, by making a hole in the wall or by assaulting the doorkeeper, the accused will be guilty of house-breaking.
Illustration: A few illustration depicting house breaking include:
- Amit by making a hole through the wall of Zeeshan house commits house-trespass & once he puts his hand through the aperture, he commits house breaking.
- Amish by creeping into a ship at a port-hole between decks commits house-breaking.
- Rana commits house-trespass by entering Zainab’s house through a window. This is house-breaking.
Punishment: (Sec-453)
Apart from the offence of lurking house trespass section 453 of the IPC also provides the punishment for housebreaking. A person who is guilty of house breaking shall be punished with imprisonment of either description which may extend upto 2 years and shall also be liable to pay fine. [28]
House-Breaking by Night: (Sec-446)
Housebreaking by night is an aggravated form of house breaking in which the offence of housebreaking is committed after sunset and before sunrise. Thus term night in the title of section 446 of the IPC encompasses within itself the time after sunset & before sunrise.
Punishment: (Sec- 456)
The offence of housebreaking by night is considered to be an aggravated form of housebreaking and hence attracts a maximum punishment of 1 year on top of the maximum punishment for simple housebreaking. Speaking precisely, housebreaking by night attracts an imprisonment of either description which may extend to 3 years, and shall also be liable to pay fine.
The offence of housebreaking & lurking house trespass aggravated further if it is done with the purpose of committing such an offence which is punished with imprisonment under the Indian Penal Code. If committed, the offender shall be punished with an imprisonment of either description which may extend to 5 years and shall also be liable to pay fine. However, if it is done with an intention to commit theft, the term of imprisonment may extend to 14 years. [29]
Conclusion
Apart from development, better lifestyle, economic prosperity, a safe & secure atmosphere is an important underpinning to the modern civilized world. The notion of a safe atmosphere to live in is what the human race has yearned for since the beginning. As such,the sovereign of a state is bound to take action to consider the safety of its subjects of paramount importance and take every step to provide such measures. This is apparent in criminalizing even the most trivial of the offences (as considered by many states) such as trespass.
Be it a complete stranger or a person you are acquainted with, whoever enters your property with a criminal intent, shall be prosecuted for criminal trespass under IPC. A keen eye needs to be kept over the intention of such a trespasser, for evil intent and not mere knowledge of it is what makes such a crime. Further, criminal trespass is of various degrees depending upon the property trespassed, measures taken during such trespass & timing of the trespass. With the degree of aggravation changing from one to another, punishment also keeps on changing from one form of criminal trespass to another, with housebreaking by night attracting the most severe of the punishments.
REFERENCES
[1] Trespass, Black’s Law Dictionary (9th ed., 2009).
[2] The Indian Penal Code, 1860,s.441.
[3] The Indian Penal Code, 1860.
[4] State of Calcutta v. Abdul Sukar, AIR 1960 CAL 189.
[5] (1917) ILR 39 All 722.
[6] Dhanonjoy v. Provat Chandra Biswas, AIR 1934 Cal 480.
[7] Sant And Anr. vs The Union Of India (UOI), AIR 1962 HP, 1961.
[8] 42 Ind Cas 897.
[9] Subhana v. The State, 1954 CriLJ 413.
[10] Criminal Trespass, available at: https://bnblegal.com/article/criminal-trespass/ (last visited on 11/12/2020).
[11] Mathurai and Ors v. State of Punjab, AIR 1963 SC 986.
[12] Chelpark Co. Ltd (1968) 1 MLJ 458.
[13] 1953 SCR 686.
[14] 116 Ind Cas 783.
[15] Writ Petition (Crl.) No. 80 of 2013.
[16] The Indian Penal Code, 1860,s.447.
[17] The Indian Penal Code, 1860,s.442.
[18] Dal Chand v. The State,1966, CriLJ 236.
[19] The Indian Penal Code, 1860,s.448.
[20] Prem Bahadur Rai v. State Of Sikkim,1978 CriLJ 945.
[21] Buddha v. Emperor, (1916) 3 AIR Lahore 425.
[22] ILR (2010) 5 Del 28 Ibid.
[23] 19. CRL.REV.P. 831/2016.
[24] Prem Bahadur Rai v. State of Sikkim, 1978 Cri LJ 945.
[25] The Indian Penal Code, 1860.
[26] The Indian Penal Code, 1860,s.445.
[27] Re: Pullabhotla Chinniah case, 39 Ind Cas 309 a.
[28] The Indian Penal Code, 1860,s.453.
[29] The Indian Penal Code, 1860,s.457.
BY SYED ROVEAL MURTAZA | UNIVERSITY OF KASHMIR