This article is written by Anjali Dhingra, IInd year student, B.B.A. LL.B, Symbiosis Law School, NOIDA. In this article, the author discusses the origin of the concept of trespass in English law. To substantiate the concept, the reference is made to section 462 of The Indian Penal Code and its elements are discussed in detail.

Introduction

The major reason for having laws in the country is for the protection of life, liberty and property of all the citizens along with maintaining peace in the country. India, for penal laws, follows the Indian Penal Code, 1860. One of the important aspects of making IPC is to ensure the right to property to the individuals and also to restrain individuals from interfering or damaging the property of others. For the same reason, the concept of offences against property was added to the penal law and the topic of criminal within.

At one time in history, trespassing was considered a fairly major crime, many times punishable by fines or jail time. Currently, in most state jurisdictions, trespassing is considered a misdemeanour, that of a minor crime. In this article, we will be discussing criminal trespass with special reference to Section 462 of IPC.

Section 462 IPC- Meaning and Elements

The concept of trespass was introduced as a breach to the peace of an individual. Until the law had not stated, trespass was not considered to be a crime for the general public. In the early common law criminal trespass was unknown. The statutes under which sit-in demonstrators have been arrested and convicted, while virtually identical in effect, vary greatly in their wordings.

At that time, criminal trespass laws were not accepted as it was stated that these laws cannot co-exist with the racial discrimination laws. To make criminal trespass as a part of the current legislation, the court was in need of valid reasoning and argument. The Court said that they are open for taking into account possible applications of the statute in other factual contexts.[11]

In many jurisdictions, the crime of trespass still has many common law elements used in early England. The section we are dealing with here is related to section 462 of the Indian Penal Code, 1860. The section makes a person liable if a property is entrusted with him and he tries to open that receptacle containing property, with intent to commit mischief or dishonesty.

The elements of Section 462 of The Indian Penal Code are discussed below:

• There was a receptacle, closed or fastened

The section requires a receptacle to be there. The word ‘receptacle’ is derived from the Latin word receptaculum i.e. a means which receives or holds a thing. As per the Oxford dictionary, it is defined as a repository for anything. It can be a chest, box, safe, closed package, a room, part of the room, warehouse or go-down as well.[3]

Further, the receptacle must be closed or fastened. It can be chained, locked or simply bolted as well.

• The accused was entrusted with the receptacle closed or fastened and had no right to open the receptacle

Section 461 of IPC also deals with the same offence. The only difference it makes is the factor of trust in Sec. 462. Here, the person is entrusted with the property. This is the reason that punishment under this section is graver than that under section 461 of the Code. There is no such information stating whether the person who is entrusting the accused with the property is the owner of the goods or not. But the possession of the receptacle at the time of committing of the offence is with the accused.

Although the accused is entrusted with the property, he/she is not authorised to open or unfasten the same. Now, the question that arises is that will the accused be held liable for breach of trust?

Breach of trust is also divided into the civil and criminal breach as criminal breach defined under Section 405 of IPC. Section 405 expressly mentions the term ‘dishonest misappropriation’ and ‘Conversion’ of property which can be the result of the act of the accused if he goes further after opening the receptacle.

• It contained property or the accused believed that it did contain a property

It is an important factor for the offence. There must be property inside the receptacle or at least the accused must be in a belief that the receptacle contains a property. The property can be movable or immovable (such as a ceiling fan) which the accused desired to have access.

• The accused brakes open or unfasten it

It is not necessary for the receptacle to be locked or chained. Even if it is just bolted and the person opens the bolt, it will come under this section. There needs to be something which has to be unfastened or broken in order to commit this offence. The offence in the section is committed the time receptacle is opened or unfastened.

• The accused did so dishonestly or with an intent to commit mischief

The most important condition is the mens-rea element in the offence. The intention of the accused needs to be looked into before reaching the conclusion. The unfastening or opening of the receptacle needs to be done with dishonesty or with intent to commit mischief. All the elements related to the section which includes criminal trespass, dishonesty, mischief or breach of trust includes the element of intent.

Dishonesty is defined in Section 24 of IPC which explains it as an act done with the intention of causing wrongful gain or loss. The primary intention of the actor needs to be the commission of dishonesty. The act of dishonesty applies only to that of ‘property’ i.e. the intent needs to be the wrongful gain or loss of property or pecuniary or economic gain or loss.

It is the intention that which is important and not whether a man is under a legal duty to disclose or suppress facts within his knowledge[4]. Therefore, where a person with the intention of causing wrongful loss to another makes a false representation to him or suppress certain facts, he will be said to have acted dishonestly even if the law does not require him to state the truth.[5] The only test which can help in discovering a man’s intention is by looking at what he actually did and by considering what must have appeared to him at the time of natural consequences of his conduct.[6]

The other reason behind the act of the accused can be intent to commit mischief. Mischief is defined under section 425 of IPC. It is denoted by any act which is caused with the Intention to cause wrongful loss or damage to the public or any person. Its major element is also Intent. Any act cannot be covered under mischief if no knowledge of requirements under this section or the act was the result of an accident or negligence.

In both the cases of dishonesty and mischief, intention cannot be concluded in case there is any conflict of ownership of that property. If the accused has done the act in an impression of considering the good to be his own, he cannot be held liable. Same is the case where the property has no owner. No person can be held liable for wrongful act or trespass against a property which has no owner.

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The Origin of Trespass in Common Law

The concept of trespass originated in England in the thirteenth century as a general concept which indicates that the defendant had done a wrong and should, therefore, pay damages and be fined. The main emphasis was on providing civil remedies such as payment of damages or return of possession as there was no clear distinction between civil and criminal wrong.

Parliament adopted criminal statutes in the late fourteenth century prohibiting forcible entry on real property. This legislative scheme was further developed in the next two and a half centuries, primarily to provide for the return of possession and to prohibit forcible detainers who refuse to leave the property.

A series of English cases explicitly recognized for the first time the existence of the common law crime of criminal trespass in the first half of the eighteenth century. This development took a long time because of a variety of factors:

• the existence of civil remedies for the tort of trespass;
• the availability of the legislation concerning forcible entry and detainer, which provided both a civil remedy and criminal sanctions;
• the failure to remedy certain conditions such as the general weakness of the executive branch of government and thus of the means for prosecuting the crime—until the sixteenth century.

The recognition of the crime of criminal trespass was complete by the time of the American Revolution, and the individual states adopted the common law crime of criminal trespass.[1]

The common law of criminal trespass was introduced to protect against intruders who poach, steal livestock and crops, or vandalise property[2]. Under common law, an action for trespass to goods lay for intentional and direct interference with another’s possession of goods. Thus, it is the interference of possession and not the title of goods. There is no requirement that the claimant should suffer any damages.

In early English common law, trespassing on the property, particularly that of the king, was considered a criminal matter. It was later in the 14th century, that landowners could sue the trespasser for civil damages. In the early 13th century in England, under common law, the king considered trespassing as a breach of his peace and would summon the trespassers to appear in the court.

This summon was a writ that the king would use to notify the defendant of the charges. Often times, the wrongdoer was fined, but many had no money and were sent to jail instead. It was in the latter part of the 14th century that the money collected from the fines was given to the landowners as a method of repayment for any damages caused by the trespasser.[10]

Conclusion and Suggestion

A person may be entrusted with a closed receptacle, for any purpose, whether by way of security or for safe custody. In either case, if it is closed and deposited, the depositee has no right to open it, but if he opens it, he commits no offence unless his intention was dishonest or mischievous. If however, he is given authority to open it, his opening it dishonestly is not punishable, though he would be, of course, liable under the general law for any offence he may commit respecting it.[7]

The scope of this section is very limited today. There are very limited cases relating to an offence u/s 462 because the act under this section being triable as a summons case, the framing of a formal charge is not necessary u/s 251 of Cr PC. The other reason can be that opening any receptacle without permission is considered as just a civil act of trespass and majorly not reported.

A layman does not consider it as a grave offence and thus it gets neglected if the accused is not able to fulfil his intention of maybe theft or mischief. Trespass to chattels requires interference with the goods and the person is liable as soon as he interferes with the property. There is no requirement that the claimant suffers damage; once the interference has been established, the act is actionable per se.[8]

Moreover, the difference of trust between section 461 and 462 made the offence under section 462 more grave and thus punishment was increased to Three years than two years. But, the offence under 461 is non-bailable and that under 462 is bailable although considered to be graver.

The act under this section makes a person liable for 3 years of imprisonment or fine or both. Along with this act, the act of intention to commit mischief or dishonesty and breach of trust is also committed. Will the person be liable for these acts in case the act is completed which they intend to do such as theft or mischief. Or, since the act is not completed, it will be considered as an inchoate offence. But, as soon as the receptacle is broken open or unfastened, the offence is complete.[9]

Bibliography

1. HUBBARD, F. P., & Khan, D. M. (n.d.). Criminal Trespass – Historical Background – Civil, Forcible, Century, and Crime. Retrieved January 17, 2019, from Law library: American Law and legal information
2. Oliver v. US, 466 US 170
3. The Shorter Oxford Dictionary, 3rd edn., Vol. 1, 1970
4. Sawariya, S. K. (2008). Dishonesty. In R. Nelson, RA Nelson’s Indian Penal Code (p. 156). Nagpur: Butterworths Wadhwa.
5. Kuldeep Singh v. State, AIR 1954 Punj 31, pg. 33
6. Stephen’s history of the Criminal Law, vol II, p. 111
7. Gaur, K. D. (2018). Of offences against property. In K. D. Gaur, Textbook on Indian Penal Code (p. 1003). Gurgaon: Lexis Nexis.
8. Leitch & Co. Ltd. V. Leydon [1931] AC 90 at 106
9. Queen v. Tasuduk Hossein, (1874) 6 NWP 301
10. The Shorter Oxford Dictionary, 3rd edn., Vol. 1, 1970
11. Comments. (1963-1964). Tulane Law Review, 104-155