This article is written by Vibhuti Tomar who is pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.
Any person who enters the property of another person without permission of the possessor of the property is said to commit the offence of Trespass. Trespassing is ordinarily a civil wrong and compensation damages are granted usually, but trespass with a criminal intention is treated as a criminal offence and is punishable under Section 441 of the Indian Penal Code. For example, if A enters to pluck flowers from the tree inside B’s house without his permission, A would be liable for trespassing.
Whereas, if A enters into B’s property, unlawfully and without his permission, to steal his car, then A would be liable for theft and criminal trespass.
According to Section 441 of the Indian Penal Code, criminal trespass is defined as, whoever enters into or upon property in the possession of another person 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 or upon such property, but unlawfully remains there with an intent thereby to intimidate, insult or annoy any such person, or with an intent to commit an offence, is said to commit “Criminal Trespass”.
In simpler words, when a person unlawfully enters into private property of another person or unlawfully remains into such property with criminal intentions, is said to commit “Criminal Trespass”.
Criminal trespass has two limbs, firstly, unlawfully entering into the property of another person with criminal intentions and secondly, entering lawfully into that property but remaining unlawfully there with criminal intentions.
Ingredients of Criminal Trespass
Entry into another person’s property
There must be an actual entry into the private property of another person by the Defendant to commit the offence of criminal trespass. No trespass can occur if there is no physical entry by the Accused into the private property of another person.
For example, Mr. Ram throws garbage outside Mr. Shyam’s house on a daily basis. In this case, Mr. Ram has not committed the offence of criminal trespassing as there is no entry by Mr. Ram into Mr. Shyam’s property.
In the case, Ghasi vs. Emperor,, the Accused even after several warnings by the Complainant continued building on the property of the Complainant. But the Court held that no criminal trespass was committed by the accused within the meaning of Section 441 of the Indian Penal Code because there was no physical entry by the Accused himself.
The term ‘property’ involves both movable as well as immovable property but does not include intangible or incorporeal property. Wrongful entry into another person’s vehicle or other movable property would have similar liability as it would be for wrongful entry into another person’s house or other immovable property.
For example- If A enters into C’s car unlawfully and demands for cash or else he would stab him with his knife, then A would be liable for criminal trespass and extortion under IPC.
In the case, Dhannonjoy vs. Provat Chandra Biswas, the Accused after attacking on the Complainant took possession of his boat and drove away, the court held that the accused has committed the offence of criminal trespass according to Section 441 of the Indian Penal Code.
Possession of property
The property in the question should be in the possession of the plaintiff and not the trespasser or someone else. Mere possession of the property is sufficient to claim criminal trespass against the trespasser. Ownership of the property is not necessary by the victim.
‘Ownership’ means the absolute rights and claims to an object. It means to own the object by the owner, whereas, ‘Possession’ is more as the physical control of an object.
It is not mandatory for the person having possession to be present at the time of the trespass; absence of the possessor would also amount to trespassing.
For example, entering a neighbor’s house for plucking fruits from their tree without their permission will also amount to criminal trespass, even if at that time, the neighbors were not at home.
There must be an intention to commit an offence, or to intimidate, insult, or annoy the possessor of the property for the unlawful entry or stay.
If it is proved that the intention of the Defendant was not to do so, it would not amount to criminal trespass.
For example, A and B, two children were playing football outside the house of C. The football of the children went into the house of C and A running after the ball entered into the house of C. Here, A had no ill intentions hence would not be liable for criminal trespass.
In Nishi Kant Das vs. State of Assam, the Court held that a mere entry upon someone else’s land will not amount to criminal trespass with the intentions set forth in section 441 IPC.
In Mathri vs. State of Punjab, the Accused had a warrant for delivery of possession from the Defendant. However, at the time of entry the warrant wasn’t executable, but the Supreme Court held that the intentions of the Accused were only to execute the warrant therefore, no criminal trespass was committed by the Accused.
Trespass in Torts
Trespass means to interfere with the other person or property, intentionally. Intentions are the essential component of trespass. It implies that the wrong was committed intentionally
Trespass is of two kinds:
- Trespass to person.
- Trespass to land, goods, and conversion.
Trespass to person includes:
Battery is the intentional application of force to another person without any lawful justification. Its essential requirements are:
- Use of force.
- Without any lawful justification.
It consists of touching another person against his will, directly or indirectly.
Direct force would be slapping a person, kicking a person, etc.
Indirect force would be throwing of water, spitting on a person’s face, etc.
Assault is an act, which causes reasonable apprehension of infliction of battery by the Defendant.
Eg. showing clenched fist, pointing a loaded pistol, etc.
Threat of violence is enough to commit assault, no physical contact is necessary. Its essential requirements are:
- Apparent ability to carry out the purpose.
- Knowledge of threat.
Trespass to land
It means an intentional interference with the possession of land without lawful justification. But such interference should be direct and not consequential.
For example, planting a tree on another person’s property shall be liable for trespass but, allowing the roots/branches of the tree planted on one’s land to escape on the neighbor’s land shall be liable for nuisance and not trespass.
The plaintiff need not prove any damage for an action of trespass.
Entering certain premises with the authority of the person in possession provides a license to the defendant and won’t be liable for trespass.
If a person is invited in the drawing room and he enters the bedroom without any justification or authority of the person in possession, he shall be liable for trespass for entering the bedroom not drawing room.
Trespass to goods and conversion
It is the direct interference with the goods which are in the plaintiff’s possession without any lawful justification.
For example, If I hire a cycle and fail to return it, I shall be held liable for the estimated cost of cycle.
Similarly, if the goods are converted without any justification, the defendant shall be liable for conversion.
For example, A has a bar in his house and B, his servant without his permission drank half bottle of wine from his bar and filled that half bottle with water, B would be liable for conversion.
Criminal vs civil offence
Trespass is ordinarily a civil wrong for which the plaintiff can sue for damages, but when such trespass occurs with a criminal intention it amounts to criminal trespass.
The trespass in torts does not require ill intent and just the unlawful and unauthorized presence of the trespasser on the property of the plaintiff. However, when the act of trespass is committed with the intention of committing an offence or to intimidate or insult any person in possession of property is said to commit ‘criminal trespass’, defined under Section 441 of the Indian Penal Code.
Hence, the only difference between trespass in tort and criminal trespass is the criminal intentions of the trespasser.
Punishment and damage analysis
The punishment for the offence of criminal trespass has been defined under Section 447 of Indian Penal Code as, whoever commits the offence of criminal trespass shall be punished with the imprisonment of either description for a term which may extend to three months, with fine which may extend to five hundred rupees, or with both.
Whereas, for trespass in torts the plaintiff may claim for damages in order to recover any financial loss suffered as a result of an infringement or alternatively a nominal sum may be awarded if no damage is suffered due to trespassing by the defendant.
In some cases, the claimant may not want any financial compensation at all, but will instead seek for an injunction, a court order to prevent a continuing, or future infringement, or perhaps a statement of unlawful infringement. Such as asking the defendant to remove his tree from the plaintiff’s property.
Trespass is a genus, civil and criminal trespass are its species. Trespass is both a civil wrong (tort) and criminal wrong because it can cause injury i.e. violation of legal rights as well as damage to a person or property. The only difference is made by the intentions of the trespasser. Trespass when done with a criminal intention becomes criminal trespass and is punishable under the Indian Penal Code.
- Indian Penal Code, 1860
- Ghasi vs. Emperor (1917) ILR 39 All 722.
- Dhannonjoy vs. Provat Chandra Biswas, AIR 1934 Cal 480
- Nishikant Das vs. State of Assam 1977
- Mathri vs. State of Punjab (1964)
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