This article is written by Mehar Verma, a 3rd-year law student, from Jindal Global Law School. In this article, the author has discussed the concept of criminal trespass and aggravated forms of criminal trespass.
Every individual has a right to the full enjoyment of their property without any disturbance, this is the reason trespass was made an offence. Even though trespass is ordinarily a civil wrong for which the defendant can sue for damages, but when such trespass occurs with a criminal intention it amounts to criminal trespass. If your enjoyment of your property, whether movable or immovable is disturbed due to criminal activities of any kind, be it theft or assault, you can seek remedy under the Indian Penal Code (IPC). For instance, X unlawfully and without Y’s permission enters into Y’s house to steal his grandfather’s antique watch, X would be liable for theft as well as criminal trespass. Further, the offence of criminal trespass may be aggravated depending upon the facts of certain cases. Consider the same example, with an additional fact that X entered Y’s property at night or in order to enter the assaulted Y, then X would have a greater liability. As the subject of criminal liability is so vast, the Indian Penal Code (IPC) has discussed criminal trespass in 22 sections, commencing from Section 441, IPC till Section 462, IPC.
Meaning of Criminal Trespass
According to Section 441 of The Indian Penal Code, whoever enters into property in the possession of another with the intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into such property, but remains there with intent thereby to intimidate, insult or any such person, or with an intent to commit an offence, is said to commit ‘criminal trespass’. Thus it can be deduced that criminal trespass occurs when a person unlawfully without any right or an express or implied license enters into the private property of another person or remains into such property with a criminal intention. The object of making criminal trespass an offence is to ensure that people can enjoy their private property without any kind of interruption from outsiders. Punishment for criminal trespass, as prescribed in Section 447 of IPC is either imprisonment which may extend to three months, or fine which may extend to INR 500 or both.
Ingredients of Criminal Trespass
Criminal trespass has two limbs, firstly, entering into the property of another with criminal intent and secondly, entering lawfully but remaining in the property with a criminal intent to harm or cause annoyance. Thus the essential ingredients for committing Criminal trespass are:
To commit the offence of criminal trespass, there must be an actual entry into the property of another by the accused person. No trespass can occur if there is no physical instrument by the accused into the private property of the victim. In the State of Calcutta vs Abdul Sukar, the court held that constructive entry by a servant does not amount to entry, under this Section as even though there was no possession in law, there was possession in fact. For instance, X throws garbage outside Y’s house on a daily basis, in this case, X may be liable for nuisance but he has not committed criminal trespass as there is no entry by X into Y’s property.
The term property under this Section includes both movable and immovable property. Wrongful entry into one’s car or other movable property would have similar liability as wrongful entry into one’s house. In Dhannonjoy v Provat Chandra Biswas, the accused drove away from the boat of the possessor after attacking him. The court held that this would amount to criminal trespass even though it was a movable property. But the term property does not include incorporeal property or something which cannot be touched, such as patent rights.
Possession of another
The possession of the property should be in the possession of the victim and not the trespasser. Having the ownership of the property is not necessary, mere possession is sufficient to claim criminal trespass against the trespasser. However, it is not necessary for the person having possession or the owner of the property to be present at the time when the trespassing occurred, no presence of owner or possessor would also amount to trespassing as long as the premises are entered into by the trespasser to annoy. For instance, writing love letters and delivering them to a girl’s house against her will would also amount to criminal trespass, even if at the time of delivering such letters, the girl was not at home.
If it is proved that the intention of the accused parties was not to insult, harm or annoy the owners or possessors of the property, then it would not amount to criminal trespass. The Intention is the essence of this crime, and if there is no dominant motive to commit the crime, no criminal trespass. The test for determining whether the entry was done with an intent to cause annoyance or any kind of harm is to determine the aim of a trespasser at the time of such entry.
In Punjab National Bank Ltd v All India Punjab National Bank Employees’ Federation, the court held that as the employees who were on strike entered the bank with the intention to only put pressure on the management to concede their demands, and there was no intent to insult, harm or annoy any of the superior officers, their entrance into the bank cannot amount to criminal trespass. However, if in the given circumstances, the strikers would have stormed into the private cubicles or offices of the superior staff with the aim of causing annoyance to such members, then it would amount to criminal trespass.
Further, it is to be proved that the intention of the accused was not probable but an actual one, this principle was laid down in Ramjan Misrty v Emperor. It is not sufficient to show that the person entering into the property of another had the knowledge that his entrance would cause annoyance, it is to be proved that there was an intention to commit an offence, or intimidate, insult or annoy any such person for an offence of criminal trespass to take place.
Aggravated forms of criminal trespass
The offence of criminal trespass may be committed at different occasions having different magnitudes and penalties. Depending upon the time of the trespass, its purpose and nature of the property trespassed, the offence may be aggravated and specific punishments are prescribed for those specific cases. Further, a crime may be aggravated by the way it is committed and the end for which it is committed.
Trespassing into the property where a man resides and stores his belonging is an aggravated form of criminal trespassing as the greatest safeguard is required against the habitation of people. Trespassing against such property is known as house trespass and is governed by Section 442 of IPC.
House trespass may be further aggravated if it is done in a way to avoid attention, known as lurking house-trespass and is governed by Section 443 of IPC. House trespass is also aggravated when it is done violently, knowns as house-breaking and governed by Section 445 of IPC.
House trespass of any form may be aggravated based on the time when it is committed, an offence taking place at night is more serious than an offence that took place during the day time. Housebreaking by night is governed by Section 446 of IPC.
Section 442 of IPC, defines house-trespass as committing criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling, place of worship or as a place for the custody of the property. A place of human dwelling does not always have to be a permanent resident of the defendant, temporary residents like school or railway platforms also count as a human dwelling. However for a building to be a human dwelling it must have some walls or some kind of security and a mere fence cannot amount to a human dwelling. This offence is an aggravated form of criminal trespass, thus every house-trespass is criminal trespassing but not vice versa. As house-trespass is against the possession of a property, it cannot take place if the defendant is not in actual possession of the property.
As per Section 448 of IPC, the defendant guilty of house-trespass may be imprisoned for a term not exceeding 1 year, fined for INR 1,000 or less or both.
Section 443 of IPC, deals with a further aggravation of house-trespass, known as lurking house-trespass. The section defines this offence as committing house trespass and taking precautions to conceal the offence of house-trespassing from any person who has a right to exclude or eject the trespasser from the building which is the subject of the trespass. In Prem Bahadur Rai v State, the court held that unless active steps are taken by the accused to conceal his presence, no charge under Section 443 can be made. Thus the ingredients of lurking house-trespass would include:
- Concealing the house-trespass from someone who has the right to exclude to the trespasser.
Therefore hiding in a porch behind a tree would fall within this section and the trespasser, under Section 453 of IPC, would be liable to imprisonment for a maximum of 2 years and fine as may be prescribed by the court.
Lurking house-trespass by night
Section 444 of IPC, talks about an aggravated form of lurking house-trespass, i.e trespass committed at night. Any lurking house-trespass committed after sunset and before sunrise fall within the ambit of this section. This offence is punishable with imprisonment not exceeding three years and fine, according to Section 456 of IPC.
Housebreaking is also an aggravated form of house-trespass and implies forceful entry into one’s house. Section 445 of IPC lays down 6 ways in which housebreaking can occur, namely:
- Through passage made by the house breaker himself;
- Through any passage not used by any person other than the intruder;
- Through any passage opened for committing an offence of housebreaking which was not intended by the house occupier to be open;
- By opening any lock;
- By using criminal force at either entrance or departure;
- By entering or quitting any passage fastened against such entrance or exit. The word ‘fasteners’ implies something more than being closed, merely pushing of door shutters would not amount to house-breaking.
The first three ways are the one in which entry is effected by using passage which is not the ordinary means of entry or exit and the last three ways are the ones in which entry is effected by use of force. The entry of any part of the human body is sufficient to constitute housebreaking under Section 445 of IPC if the following ingredients are present:
- The entrance by the trespasser must be done in any of the 6 ways prescribed above.
In Pullabhotla Chinniah case, the court held that the breaking open of a cattle-shed in which agricultural implements are kept would also amount to house-breaking. Further, making a hole in the wall to enter a house, using a window to enter a house, assaulting the guard or doorkeeper to enter a house, all amount to housebreaking and the accused will be liable for imprisonment not exceeding 2 years and fine under Section 453 of IPC.
Housebreaking by night
When housebreaking is committed after sunset and before sunrise, it is considered an aggravated form of house-breaking and is governed by Section 446 of IPC. This offence is punishable with imprisonment not exceeding three years and fine, according to Section 456 of IPC.
Dishonestly breaking open receptacle containing property
Meaning and punishment for dishonestly breaking open receptacle containing property are defined under Section 461 of IPC. The said section punishes whoever dishonestly or with the intent of committing mischief, breaks or open any receptacle or container used as storing place. The offence is cognizable, non-bailable and triable by any magistrate and the punishment for the same may extend up to 2 years, fine, or both. The ingredients of this offence would be:
- There was a closed container or receptacle;
- It contained property or the accused believed it contained property;
- The accused intentionally broke opened the receptacle;
- The accused did so dishonestly;
- The accused did so with the intent to cause mischief.
The term ‘receptacle’ signifies all kinds of vessels and not only includes a safe box, chest or closed package but also includes a room or a part of a room such as a warehouse, or godown. The only condition is that such a vessel must be closed by means of chain or bolt or fastened in any manner. The offence is said to be completed as soon as the receptacle is broken or unfastened with dishonest attention to steal or cause any other kind of mischief.
If a stranger or for that matter even a known person enters any property in your possession with an intent to cause harm or injury, then such a person would be liable for committing an offence of criminal trespass under IPC and remedy can be sought by any court of law. While determining the offence of criminal trespass it is necessary to have an intention to commit wrong and mere knowledge would not amount to criminal trespass. Further, the punishment prescribed for the offence of criminal trespass would depend upon the aggravation that occurred while the crime was committed. House-trespass is a more serious offence than mere criminal trespass, lurking house-trespass and house-breaking are aggravated forms of house-trespass and lastly lurking house-trespass by night and housebreaking by night would attract the highest kind of punishment.
- The Indian Penal Code
- State of Calcutta vs Abdul Sukar, AIR 1960 CAL 189
- Dhannonjoy v Provat Chandra Biswas, AIR 1934 Cal 480
- Punjab National Bank Ltd v All India Punjab National Bank Employees’ Federation 1953 AIR 296, 1953 SCR 686
- Ramjan Misrty v Emperor 162 Ind Cas 231
- Prem Bahadur Rai v State (1978) CR.
- Pullabhotla Chinniah (1917) 18 CR.
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