This article is written by Kanisha Goswami, a law student from Indraprastha University. This article explains Section 452 of IPC which deals with trespass to a house followed by preparation of assault, hurt or wrongful restraint.
Table of Contents
Introduction
Trespass in layman terms means to enter into someone’s land without his consent. Whenever trespass is done with the criminal mind, it amounts to criminal trespass and is regarded as a punishable offence under the Indian Penal Code. If any act which disturbs the right of a person to enjoy his/her private property is a house-trespass. Section 452 talks about trespass with the intention to hurt, assault or restrain someone is an aggravated form of house-trespass as trespassing into the property where a person resides and stores his valuables is illegal. Therefore, it is obvious that before a person is held to be guilty of an offence punishable under this section, it must be proved that in that alleged trespass, all the elements mentioned in section 452 were present.
Section 452 IPC
Section 452 of the IPC, deals with trespass to house with the motive to hurt someone or assault any person or restrain someone wrongfully, or to put someone in fear of hurt or of assault or wrongful restraint. Here, the trespasser is punishable with a minimum sentence of 7 years and with a fine. It is a cognizable, bailable offence and triable by any magistrate. This section provides higher punishment where trespassing to a house causes harm, assault, or restraint on someone.
When trespass is committed with a criminal mind, it results in criminal trespass which is punishable under IPC. If any person’s privacy or enjoyment of property, whether it’s movable or immovable, is retrenched due to criminal activities of another person, then IPC provides a remedy for such infringement of rights.
Ingredients of Section 452 IPC
Entering the estate of another person
The entry here means that the person enters someone’s property with evil intentions. Entry doesn’t need to be made by force, it has to be unauthorised or against the will of the owner of that land.
In Savitaben vs The State Of Gujarat (2019), at about 2:30 PM complainant’s wife, Narmadaben was at her house scolding her son, and the accused, Savitaben misunderstood that which resulted in a verbal argument between them. Savitaben’s husband took a stick and chased after Narmadaben to beat her. Narmadaben went inside the room and locked the door of the house. Accused and her husband broke the door and made her lie down on the berth and Savitaben brought the jar of kerosene and gave it to her husband and he set the deceased(Narmadaben) on fire. Both of them ran away. Court held that both accused 1 and accused 2 are punishable under Section 302 and Section 452 read with Section 114 of IPC.
Property must be owned by another person
The property must be owned by another person and not by the trespasser himself. The main function of this section is to protect the interest of the owners. If the entry made by the trespasser is clear to harm or assault another person then that person is liable under this section.
In Main Pal vs State Of Haryana (2010), the complainant stated that while she and her daughter-in-law were sleeping in her house, around 11:30 PM, the appellant jumped over the wall of her house and broke all the bulbs, and ran away. There were no male members at home at that time and after one hour the appellant came again to her house and touched her daughter-in-law. The Court charged him with the offence of house-trespass with the mala fide intention to assault her daughter-in-law.
Intention to cause hurt, assault, and wrongful restraint
The intention of the accused is essential to convict the suspect under this section. Accused must commit an offence with an intention to harm, assault, or restrain any person to take possession of such property. Intention can be proved by circumstantial evidence.
Example:
When someone went into the house of any person with a fictitious warrant to arrest and took that person away without his will. Here, the culprit is punishable under this Section.
Trespass
Trespass is a legal term that means unauthorised entry onto the owner’s land without his permission or an unwarranted invasion. Trespass is mentioned in both criminal law and tort law. It is an intentional interference with one’s person or property. The word ‘intention’ here means committing the wrong by choice. Intention is an essential element as ‘mens rea’ is the main reason for an act to be criminal. Trespass to a house is an exacerbated form of criminal trespass. Thus, If any person who is permitted to sit in a drawing room enters the bedroom without any reason, that entry will be a trespass.
To throw garbage upon one’s premises is also a wrong of trespass that means trespass is not only about physical interference but could be committed by throwing some material object on another person’s land. It can be said that the person has an ulterior or mala fide motive to harass another person.
Wrongful restraint
Section 339 of the Indian Penal Code states that any person who voluntarily blocks another person from moving in any direction in which that person has a right to move freely, or obstructs that person by making the path impossible, dangerous, or difficult to cross, is meant to unlawfully restrain that person. The motive of this section is to protect the freedom of a person. The complainant must prove that there was an obstruction that prevented him from proceeding in any direction. To invoke this section, the complainant needs to prove his right over the land. Whoever obstructs any person shall be punished with imprisonment which may extend to one month, or fine up to five hundred rupees, or with both.
If obstruction happens in good faith and the accused who is obstructing someone is having a lawful right to obstruct that person, this will not amount to wrongful restraint. This offence is cognizable, bailable, and triable by any magistrate. This is a compoundable offence.
In Madala Peraiah And Ors. v Voruganti Chendriah (1954), the facts were that the complainant purchased land nearby and whenever he went there he had to pass through the planned path(Donka). The planned path passes through the land of the accused. There has been conflict between both of them. One day, when he was crossing the Donka, the accused stopped him from using the water and he obstructed him from going to his land by blocking the path for his bull, he beat them, and drove them away. The Court held that the accused committed the offence of wrongful restraint.
Wrongful confinement
Section 340 of the Indian Penal Code defines wrongful confinement as when any person unlawfully restrains another person in such a manner to prevent that person from moving beyond certain circumscribing limits. Wrongful confinement is a kind of wrongful restraint as in both of the offences a person kept within the limits out of which he has a right to go or he wishes to go. There must be a total restraint not, partial restraint of a person. Example: Locking up a person in a room amounts to wrongful confinement.
In State v. Balakrishan And Others(1992), the accused who was a police officer arrested the complainant’s relative. The complainant reached the police station and asked the officer what offence had been committed by his relative. The accused commanded the complainant to stand in the corner for the whole night. He was not allowed to move and seek legal remedies. Here, the accused committed the offence of wrongful confinement as he prevented the complainant from moving from that place.
Punishment under Section 340
Whoever confines any person unlawfully shall be punished with imprisonment which may extend to one year, or with fine up to one thousand rupees, or with both. The offence under this Section is cognizable, bailable, and triable by any magistrate. It is a compoundable offence.
Other ways of house-trespass
Section 442 IPC
Section 442 of Indian Penal Code defines house-trespass as criminal trespass when any person enters or remains in any building, tent, or vessel which is used as a house dwelling, or any building which is used as a place of worship, or as a place for the custody of estate, is said to commit house trespass. No person can be convicted of this offence if he enters into the property of another person by leave or licence.
Section 443 IPC
Section 443 of IPC defines lurking house-trespass. Any person who commits house-trespass while taking precautions to conceal such trespass from another person who has the authority to eject or exclude the trespasser from the tent, building, or vessel, is said to commit lurking house-trespass. This is an aggravated form of house-trespass.
Section 444
Section 444 of IPC talks about lurking house-trespass committed at night. When any person commits lurking trespass after sunset and before sunrise, it amounts to lurking house-trespass. This offence is punishable under Section 456 of IPC, with imprisonment not more than three years and with a fine.
Section 445 IPC
Section 445 defines the offence of housebreaking which is an aggravated form of lurking house-trespass. This section lays down different ways in which house-breaking can happen:
- If someone enters through a passage which was made by him;
- If any passage not used by anyone other than the trespasser;
- By the opening of any passage for committing a crime of housebreaking which was not intended by the owner of the house to be open;
- By opening any lock;
- Use of criminal force either at the time of entry or at the time of departure.
Section 446 IPC
Section 446 defines the offence of housebreaking by night which is committed after sunset and before sunrise, this is an aggravated form of housebreaking. This offence is punishable under Section 456 of the Indian Penal Code with imprisonment which may extend to three years and with a fine.
Punishment under Section 452 IPC
When any person commits house-trespass with the intention of causing hurt to another person or assaulting another person or unlawfully restraining any person shall be liable to imprisonment which may extend to seven years, and shall also be punished with a fine. This offence is cognizable, non-bailable, and triable by any magistrate. This offence is not listed under compoundable offences.
Case laws
In Tulshiram Bhanudas Kambale v. State of Maharashtra(2007), some persons were watching a movie inside the house of the deceased person. After some time they sat on the lawn. Later, the accused came along with some people and they were armed with swords and weapons. The Court observed that the appellants had come with deadly weapons and arms to the house of the complainant with the mala fide intention and common object to kill the complainant. They have committed the offence of house-trespass intending to kill the complainant party and the deceased(owner of the house) passed away on the spot as he had incised wounds, many of them on the head and other parts of the body.
In Achhar Singh v. The State Of Himachal Pradesh (2021), the complainant and her mother attended the wedding in a nearby village. Both the ladies returned home. The accused and other villagers with the intention to kill them started pelting stones at them. The complainant and her mother rushed back to the house. However, the accused broke the door and entered the house with weapons. The complainant’s mother died on the spot and the complainant was beaten with sticks. Somehow, the complainant managed to leave the house and went to the police station. In this case, the accused and other villagers committed the offence under Section 452.
In Udham Singh v. The State Of Madhya Pradesh(2019), the complainant’s father and his brother, who were residents of Jamniya village, went to water their land at 5 o’clock. There was a dispute between the deceased and accused over land. Thereafter, the accused and his family he called, beat him with the lathi. Kashiram(deceased’s son) who was also the eye-witness, filed a case against the accused. The Court held that there was a quarrel between the parties and at that time an incident had happened, the deceased died due to injuries caused to him and stated that the accused and his family members are liable under this Section.
Conclusion
If someone, either stranger or known, enters into the property which is in your possession with an intent to cause harm or assault, then such person would be liable under the offence of house-trespass and remedy can be sought in any court. House-trespass is an aggravated form of criminal trespass and lurking house-trespass and housebreaking are more aggravated forms of house-trespass. House-trespass is something that hinders the privacy of another person which he/she has a right to enjoy. Privacy is a fundamental right of a citizen that no one has the right to hinder.Thus, it is very essential to know the difference between the situations where an offence amounts to house trespass or where it may not. Through this path only people will be able to exercise their rights and duties.
References
- Section 452 in The Indian Penal Code
- https://lawrato.com › INDIAN PENAL CODE
- https://www.indianconstitution.in/2021/06/section-452-ipc-in-hindi-and-english.html
- https://indiankanoon.org › search › formInput=section …
- https://www.latestlaws.com › bare-acts › central-acts-rules
- https://www.aaptaxlaw.com › IPC › section-452-ipc-ho…
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