Criminal trespass

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Criminal trespass

What is Criminal Trespass?

 The definition of ‘Criminal trespass’ in Black’s Law Dictionary is stated  as “A person who enters on the property of another without any right, lawful authority or an express or implied invitation or license”.[1]

Criminal trespass basically refers to an unlawful entry by a person into a private property of another person. Any person who enters the property of another without the owner’s permission is said to have committed the offence of criminal trespass. All around the globe, trespass against the property has been recognized as a civil wrong. However, a lot of countries, including India have made it a criminal offence too. In India, Criminal trespass is ordinarily a civil wrong and usually compensation damages are granted. However, trespass with a criminal intention is treated as a criminal offence and   is punishable under the IPC. The reason for making it a criminal offence is to keep the trespasser away and so that the owners enjoy their property without any interruptions.

Requirement of criminal intent

Traditionally, the most specific requirement of trespass, whether civil or criminal is ‘intent’. Just the unlawful presence of a person on someone else’s property is not enough. It has to be shown that the person knew that he wasn’t allowed to be on the property and that he still chose to go on other’s land, with ill intent. Knowledge may be inferred when there’s a fencing done, or when there is a ‘no trespass’ sign on the property. A person can be held liable for trespass in public places too, if he or she enters after the closing time or if they fail to leave even when asked to. It needs to be demonstrated that the unlawful entry was with an intention to commit an offence, or to intimidate or to annoy the person who owns the property. The intent to intimidate, insult or annoy is a must for trespass of a criminal nature.

Civil Trespass and Criminal Trespass:

There is a clear difference between civil and criminal trespass. Civil trespass does not require ill intent and just the unlawful presence of a person on someone else’s property is enough to hold them liable. However, when the act of trespass is accompanied by the intent to commit an offence or to intimidate or insult or annoy any person in possession of property, it is said to be criminal trespass and it is punishable under the IPC.

The ingredients of Criminal Trespass:

The essentials of criminal trespass are:

1. Entry into property in the possession of another

2. If such entry is lawful, then to remain upon such property unlawfully

3. Such entry or unlawful remaining must be done with the intention to:

  • To commit an offence
  • To intimidate, annoy or insult the person in possession of the property

Legal provisions under IPC:

Section 441 of IPC defines ‘criminal trespass’, while section 447 provides the punishment for it. They read as under:

Section 441:

Criminal trespass: Whoever enters into or upon property in the 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]

Section 447:

Punishment for criminal trespass: Whoever commits criminal trespass shall be punished with imprisonment of either descrip­tion for a term which may extend to three months, with fine or which may extend to five hundred rupees, or with both.[3]

The offence of criminal trespass has various forms and all of them are mentioned under the IPC. Sec. 442 defines “House-trespass”. Sec. 443 defines “Lurking House-trespass”. Sec. 444 defines “Lurking House-trespass by night”. Sec. 445 defines “House-breaking”. Sec. 446 defines “House-breaking by night”. Sec. 447 prescribes punishment for Criminal trespass. Sec. 448 prescribes punishment for house- trespass. Sec. 449 to Sec. 462 defines as well as prescribes various punishments for the aggravated forms of house-trespass and house breaking.[4]

Position In Britain:   

Trespass in English law involves the “unjustifiable interference with land which is in the immediate and exclusive possession of another”; a tort as well as a crime under the Criminal Justice and Public Order Act 1994. There is no necessity to prove that harm was suffered to bring in the claim and it is actionable per se. The courts also confer liability for accidental trespasses. The courts however, have acknowledged that the trespasses aren’t always intentional and they could be committed due to negligence too.[5]

Position In Australia

In Australia, the people have a right to privacy in their homes or at their business places and if anyone tries to violate the right, they’re said to be committing trespass. Under the Summary Offences Act, a person in Australia must not enter into or remain in someone’s house or business premise   without proper permission or without any lawful reason. The police will use discretion to charge a person with the offence of trespass. [6]

Position In US:

In most states of US, criminal trespass is punishable by a misdemeanor. In some states, criminal trespass is considered a felony and usually the distinction is based on the presence or absence of criminal intent of the trespasser. Criminal trespass also comes with some kind of a fine and/or imprisonment, along with the charges of misdemeanor or felony.[7]

Illustrations:

Mathri v. State of Punjab

In this case, it was reiterated by the court that the dominant intention of the trespasser must be to commit an offence or to intimidate insult or annoy the person in possession of the property. The accused had a warrant for the delivery of possession from the defendant. However, at the time of the entry, the warrant wasn’t executable. The Supreme Court held that the intention for such trespass was only to execute a warrant and therefore the act did not constitute a criminal offence.[8]

Dhannonjoy v. Provat Chandra Biswas

In this case the accused drove the lesse of a boat away after attacking him and took possession of the boat. The accused then plied the boat away after taking money from the boat. The Calcutta high court held that this would amount to criminal trespass.[9]

Punjab National Bank Ltd.  v. All India Punjab National Bank Employee Federation

In this case, the employees of the bank, in furtherance of a protest, sat in their places in the bank premises but refused to work. It was contended that the employees had trespassed with the intent to insult or annoy their superior officers and hence amounted to committing of criminal trespass. However, the Supreme Court held that even if the entry is assumed to be unlawful, it can’t be accepted that the entry was made with the intent to insult or annoy people. The only intention of the employees was to put pressure on the authorities. The court stated that the difference between knowledge and intention should be borne in mind while deciding if a certain matter falls under S. 441. The court held that the act of the employees did not amount to criminal trespass. [10]

 Ramjan Mistry v. Emperor

In this case, the court ruled that it is not only necessary to prove the existence of the intention to insult, annoy or intimidate, but also it is required to show that the intention is an actual one and not just based on probability. The intention of the accused could be inferred from the acts of the accused. Also, in the absence of such an intention of annoying, intimidating or insulting someone, or commission of an offence, it is impossible to convict someone for criminal trespass.[11]

Frequently Asked Questions

What is considered trespassing?

Trespassing basically refers to the situation in which one person enters onto the land of another without permission or the legal right to be there. Depending on the circumstances and the law in place where the act occurs, trespassing could either be considered a crime, a civil wrong (a tort), or both. 

What are the three types of trespass?

Trespass is basically divided into three types which are: trespass to the person, trespass to chattels and trespass to land. Trespass to the body of a person involves six separate trespasses: threats, assault, battery, wounding, mayhem (or maiming), and false imprisonment.

Can I use force to remove a trespasser?

If someone trespasses on other’s property despite due warning, practically they should be asked to leave immediately. However, if they do not adhere, the person may use reasonable force to eject the trespasser. However, this force should, in no circumstances be unreasonable or out of proportion with gravity of the situation.  

Is trespass a criminal or civil offense?

Trespass is both a civil wrong (tort) and a criminal offence. Trespass when done with a criminal intent is a criminal offence and is punishable under the Indian Penal code.

Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje

Reference

[1] Retrieved on 18/02/19; from http://legalfictionwarfixins.wefreepeople.org/uploads/1/1/7/0/11701677/1_do_not_trespass_intro.pdf.

[2] Section 441; Indian Penal Code, 1860.

[3] Section 447; Indian Penal Code, 1860.

[4] Section 442-section 462; Indian Penal Code, 1860.

[5] The Criminal Justice and Public Order Act 1994 as in force today; retrieved  on 18/02/19 from  Legislation.gov.uk.

[6]Retrieved on 18/02/19 from https://www.legislation.sa.gov.au/lz/c/a/summary%20offences%20act%201953/current/1953.55.auth.pdf.

[7] Retrieved on 18/02/19 from https://www.signs.com/blog/state-by-state-guide-to-no-trespassing-laws-signage/.

[8] AIR 1964 SC 986.

[9] AIR  1934 Cal 480.

[10] AIR 1960 SC 160.

[11] AIR 1929 Pat 111.