Sections 441 to 462 of the IPC deal with the offence of criminal trespass and its aggravated forms. Trespass is generally a civil wrong for which the defendant can sue for damages but when this trespass is committed with a criminal intention, it is treated as an offence and made punishable under the IPC.
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”.
Section 441 has two parts. The first part is regarding entry into property in the possession of someone else with the intention to commit some offence or to intimidate, insult or annoy that person. The second part refers to the remaining in the property unlawfully, after entering into it lawfully, with the intention of committing an offence or insulting, intimidation or annoying that person.
The essential ingredients of criminal trespass are-
1. Entry into a property which is in someone else’s possession
2. If this entry is lawful, then unlawful remaining on that property
3. With the intention to
• Commit an offence
• Intimidate, insult or annoy the person in possession of that property
The section opens with the words ‘whoever enters’ which implies that there must be an actual entry upon the property by the accused. For example, constructive entry by a servant will not amount to entry within this section.
The word property in this section covers both movable and immovable property. Hence, there can be criminal trespass to a motor car, boat, airplane etc. In Dhanonjoy v Provat Chandra Biswas , a boat has been leased. The accused attacked the person to whom it was leased, drove it away and plied it across the river to collect money. It was held that this would amount to criminal trespass.
Possession of another
For the offence to be committed, the entry into the property should be in respect to the property in possession of someone other than the trespasser himself. The legality of that possession is, however, immaterial. It is also not essential that the person in possession of the property is present in the property when the trespass takes place.
Entry into the property should be with the intention to commit an offence or insult, intimidate or annoy the person in possession of the property. In Mathri v State of Punjab , the accused along with others, entered the property with warrants. However, at the time they entered the property, the warrants had ceased to be executable in law. The Supreme Court held that since the accused only entered with the intention of executing the warrant, this act did not constitute the offence of criminal trespass.
In Punjab National Bank Ltd v All India Punjab National Bank Employee’ Federation , the employees went on a strike in which they occupied their seats but refused to work or vacate the premises. The bank contended that the employees’ entry was only lawful on the condition of them working. They also contended that the employees had entered the property with the intention of insulting and annoying their superior officers and hence it amounted to criminal trespass. The Court held that even if the strikers had knowledge that their strike might annoy their seniors, such knowledge cannot amount to intention. Thus, the acts of the employees did not amount to criminal trespass.
In order to constitute the offence of criminal trespass, it is not necessary that the accused actually commits an offence or actually intimidates, annoys or insults the person in possession of the property. Mere intention to do so will amount to criminal trespass. This intention can be inferred from the circumstances but it must be actual and not a probable one.
Remaining unlawfully after lawful entry
If the accused enters the property lawfully but subsequently remains on it unlawfully, it would amount to criminal trespass if the above mentioned intention is present. In State of Maharashtra v Tanba Sadadhio Kumbi ,the accused, the vice chairman of the school committee, entered the school and beat up two boys who had a fight with his nephew. On being reprimanded by the headmaster, the accused abused and threatened him. The Court held that this would be covered by the second part of section 441, IPC.
Punishment for criminal trespass
Section 447 of the IPC lays down that anyone who commits criminal trespass shall be punished with imprisonment of a term which may extent to three months and/or fine which may extend to five hundred rupees.
Aggravated forms of criminal trespass
1. Section 442 & 448 : anyone who commits criminal trespass by entering into or unlawfully remaining in-
• Building, tent or vessel used as a human dwelling
• Building used as a place for worship
• Building used as a place for the custody of property,
shall be punished with imprisonment of term extending to one year and/or fine extending to one thousand rupees.
House trespass in order to commit offence punishable by death: punishable with rigorous imprisonment for a term not exceeding ten years and fine
House trespass in order to commit offence punishable with imprisonment for life: punishable with imprisonment for a term not exceeding ten years and fine
House trespass in order to commit an offence punishable with imprisonment: punishable with imprisonment for a term which may extend to ten years plus fine and if this offence is theft then the imprisonment may extend to seven years.
House trespass after preparation for hurt, assault or wrongful restraint: punishable with imprisonment which may extend to seven years plus fine.
2. Section 443: Lurking house-trespass.—Whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit “lurking house-trespass”.
This offence is punishable with imprisonment extending to two years plus fine.