The term ‘trespass’ which ordinarily means forcible entry is generally perceived as a civil wrong. In such a case the defendant can sue for damages. The same trespass when done with a criminal intention amounts to criminal trespass and is made a punishable offence under the Indian Penal Code, 1860 (hereinafter referred to as IPC).
The objective behind enabling such a provision in the IPC is to let people enjoy their property without any interruptions. The objective is clearer after reading the following by the drafter of the IPC-
“We have given the name of trespass to every usurpation, however slight, of dominion over property. We do not propose to make trespass, as such, an offence, except when it is committed in order to commission of some offence injurious to some person interested in the property on which the trespass is committed, or for the purpose of causing annoyance to such a person. Even then we propose to visit it with light punishment, unless it be attended with aggravating circumstances.”[1]
Criminal trespass has been articulated in the IPC as follows-
“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”.”
The punishment for criminal trespass has been mentioned under Section 447, IPC, which states that-
“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, or with fine which may extend to five hundred rupees, or with both.”
The essential ingredients[2]of ‘Criminal trespass’ therefore are-
1. Entry into or upon property in the possession of another;
2. If this entry is lawful, then unlawfully remaining upon such property;
3. Such entry or unlawful remaining must be with intent-
4. to commit an offence; or
5. to intimidate, insult or annoy the person in possession of the property.
As per this Section, “whoever enters” denotes that there must be an actual personal entry by the Accused person. Such an entry has to be unauthorized and not necessarily by force or against the will or consent of the person who is in possession of the property.
The use of the term “property” is general in nature and would therefore be wide enough to include both movable as well as immovable property. Therefore, criminal trespass could also be committed if the accused was trying to get into the car of the possessor of the Car.
Example– If the accused person caught hold of the owner’s boat and subsequently, took possession of the same to collect money across the river side area. This would amount to Criminal Conspiracy as defined under Section 441, IPC.[3]
The term “possession of another” implies that the entry by the accused shall be in such property which is in possession of the other and not the trespasser. The provision does not require you to be owner of the property. You could also be in possession of the said property which has been trespassed into.
It is also not essential that the owner of the said property or the person having possession over the said property was present in the property when the trespasser entered the premises. It would still amount to trespassing even if the owner or possessor were not present inside the property. “Intention” is a very important factor when considering criminal trespass. Trespassing into the property with a criminal intent to insult, intimidate or annoy the person in possession of the property is the essence of Criminal Trespass. There is a metaphorical allusion to the term ‘intent’ implying ‘aim’, meaning thereby, the object for which the effort was made. It is therefore the dominant motive without which the action wouldn’t have taken place.[4]
Therefore, when the Accused and others entered upon the property only with the intention of executing the warrants and not with the intention to commit an offence or to intimidate, insult of annoy the person in possession of the property, the act would not constitute an offence of criminal trespass.
In the case of Punjab National Bank Ltd. v.All India Punjab National Bank Employees’ Federation[5], the employees of Punjab National Bank did go to their respective branch offices, however, refused to work. They therefore went on a ‘pen-down strike’. The Management contended that the employees are licensed to enter on the condition that they are willing to work. If they decide not to do their job, they would be considered to be trespassers. However, this contention was rejected by the Supreme Court.
The Court observed that even if it were to assume that the entry of the workers was unlawful, it would be difficult to accept that the said entry was made with the intent to insult or annoy the superior officers. The sole intention of the strikers was to put pressure of the Bank to concede their demands. Moreover, even though the strikers had the knowledge that such an action could lead to annoying the superior officers, it didn’t necessarily imply intention to annoy. That’s the difference between knowledge and intention. The Apex Court therefore held that the employees did not commit the offence of criminal trespass.
However, if in the same situation, the workers were not allowed to enter the cabins without staff’s permission, however they still stormed in, this would amount to criminal trespass.[6]
Therefore, the sine qua non of Criminal trespass is the intention to commit an offence to intimidate, insult or annoy the person in possession of the property. Intention on the part of accused therefore becomes essential to establish while proving commission of criminal trespass. Further, it is necessary for this intention to be an actual one and not a probable one. Without proving intention, the accused cannot be held guilty and convicted for the offence of criminal trespass.
Illstration
If parents of Student A enter into the college building with the intention to intimidate the Principal or assault her unless she agrees to give A admission in the College, and they enter without the permission of any person, it would amount to criminal trespass along with other offences.
In this example, there was entry into the premises of the college which they were not allowed to do, which was unlawful and the purpose of this entry was to force the Principal to get their child admitted into the institute. All the 3 essentials were fulfilled and thus, they were guilty of criminal trespass.
What has been discussed above constituted the first limb of Section 441, IPC. The second limb talks about a situation where the person entered the property lawfully but his prolonged stay in the property is unlawful and therefore, amounting to trespassing. In such a situation too, the intention behind this prolonged stay must be to insult, intimidate or annoy the possessor of the property, or to commit an offence.
Therefore, if a pizza delivery man was allowed to enter the premises of the house to use the washroom and later he entered the bed room and when asked to leave, he refused unless given Rs.10,000/-, this would amount to criminal trespassing. He entered with the permission of the possessor of the property, but later, entered in areas where he was not permitted to with the intention of taking money from the possessor.
Punishment for criminal trespass has been provided under Section 447, IPC which states that a person who is held guilty of criminal trespass shall be punished with imprisonment of upto 3 months, or fined upto five hundred rupees, or both.
For other aggravated forms of criminal trespass, the punishments have further been articulated under the IPC. Section 422 defines the offence of house-trespass. The punishment for the same has been defined under Section 448, IPC.
Section 442 reads as follows-
“Section 442. House-trespass- Whoever commits criminal trespass by entering into or remaining in the building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit ‘house-trespass’.
Explanation– The introduction of any part of the criminal trespasser’s body is entering sufficient to constitute house trespass.”
House-trespass is thus an aggravated form of criminal trespass, similar to Section 380, where theft in a building is make an aggravated form of theft. House-trespass is different from criminal-trespass because it is restricted to the trespasser trespassing in a house, vessel or tent which is being used as a human dwelling, or any other worship place or place for custody of property.
However, the term ‘building’ has not been given a fixed connotation. What constitutes a building or a house dwelling or a place for the custody is a question of fact.[7]
Since it is an aggravated form of criminal-trespass, the aspect of intention remains the same. Intention is house trespass also is to annoy, insult or intimidate the possessor of the property.[8]This thus formulates the second essential of house-trespassing.
House trespassing could amount to the offence being punishable by death (u/s. 449), with imprisonment for life (u/s. 450) or with imprisonment (u/s 451). Whether the object of house trespass has been achieved or not is immaterial. In order to be committing the offence, it does not actually mean commission of the offence to attract higher punishment provided under the above mentioned sections.[9]
Lurking House-trespass in an aggravated form of house-trespass having been committed in a surreptitious manner. It is defined u/s. 443, IPC as follows-
“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”.
The punishment for the same is ascertained u/s. 453, IPC, which states that-
“Section 453. Punishment for lurking house-trespass or house breaking– whoever commits lurking house-trespass or house breaking, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.”
The essential difference between house-trespass and lurking house-trespass is the trespasser taking some active precautions or effective steps to conceal all his identity or presence from the person who has a right to prevent that person from entry or who has a right to throw out upon entry.[10]
If criminal trespass as defined above has been committed in a violent manner, it would then be designated as house-breaking. The same has been defined under Section 445, IPC. When a trespasser invades into a house or makes a forceful entry, it would amount to breaking into the house. The ways of entering into the house defined under this Section are-
1. Through the passage made by the accused himself or his accomplice of the house-trespasser.
2. Through any passage not meant for human entrance.
3. Through any passage opened by himself or the abettor.
4. By opening any locks to seek entry into, or exit from the house.
5. By using criminal force.
6. By entering or quitting through any passage fastened against such entrance or exit.[11]
It therefore means either entering in a house through a passage which is not otherwise meant for access or entering by force.
There are further aggravated forms lurking house trespass or house breaking u/s.454, 455 and 459, IPC. Section 454 deals with lurking house-trespass or house breaking in order to commit the offence punishable with imprisonment. This section provides for a higher term of imprisonment of either description. Section 455 talks about lurking house- trespass or breaking with the intention of causing hurt, assault or wrongful restraint. Such an offence is publishable with imprisonment which may extend to ten years and also fine.
Section 459 discusses the offence of causing grievous hurt or attempt to cause death whilst lurking house trespass or house breaking. The prescribed punishment for this offence is imprisonment for life or for a term which may extend to 10 years along with fine. Such grievous hurt or attempt to cause death must be done is the course of commission of lurking house- trespass/ breaking and not after the completion of the same.[12]
Further, if the house- breaking happens by the night,i.e. after sunset and before sunrise[13], it would be punishable u/s. 456 which sets the punishment for the same. In such a scenario, there would be an imprisonment for a term upto 3 years along with fine.
Similarly, house breaking by the night is defined u/s 446, IPC and is made punishable u/s. 456, IPC.
Sections 461 and 462 punish the offence of dishonestly breaking open a receptacle containing property. This would include lockers, boxes, safes etc. meaning thereby, places used for storing. For the offence under Section 461 shall get completed the moment the accused dishonestly breaks open the receptacle containing property. And when this receptacle is entrusted is the accused and the accused tries to break open the receptacle, it shall become punishable u/s. 462. The element of ‘trust’ is what distinguishes Section 461 from Section 462. The punishment for the offence u/s 462 is simple or rigorous imprisonment for a term upto 3 years with or without fine.
Illustrations
1. A group enters into A’s agricultural property without his permission or knowledge and started to live there. They further sold the agricultural produce of the land. A could file a suit of trespass and damages in this situation.
2. Ex- employees of Company O entered into the Company in order to threaten and intimidate the Employer to take them back to their respective positions. They entered without the permission of the authority and further threatened the official staff. This would amount to criminal trespass along with other offences.
Frequently Asked Questions
1. What makes Trespass a criminal offence?
Trespass simply means forcible entry and is seen as a civil offence. It has been explained in the law of torts. However, when this trespass is done with a criminal intent, it becomes criminal trespass. Intention thus becomes one of the most important factors to judge criminal trespass. It plays a dominant role and trespassing into the property with a criminal intent to insult, intimidate or annoy the person in possession of the property is the essence of Criminal Trespass.
2. Distinction between House Trespass and House Breaking?
While both the offences are an aggravated form of criminal trespass, when the property, which is in the possession of another, and is of the nature of a human dwelling, is entered into with the intent to commit an offence, it amounts to criminal trespass.
If the trespass is further aggravated by making an entry or exit which in forcible in nature, then it would amount to house breaking.
3. Is there a distinction in committing trespass in the day and night?
As per the legal definition, any time after sunset and before sunrise is ‘nighty. If Lurking house trespass or house breaking is committed by the nigh, the offense would be punishable under Section 457, 458 and 460 IPC, with imprisonment upto 14 years in case of theft and upto 5 years otherwise.
In case the trespass was for the purpose of attempting to cause death or grievous hurt, then the person guilty shall be punished with imprisonment for life or upto 10 years and shall also be liable to pay fine.
Edited by Parul Soni
Approved & Published – Sakshi Raje
Reference
[1] Macaulay, Macleod, Anderson and Miller, A Penal Code prepared by the Indian Law Commissioners and published by Command of the Governor General of India, Pelham Richardson, 1838, Note N, p 168.
[2]Mathri v. State of Punjab AIR 1964 SC 986.
[3]Dhanonjoi v. Provat Chandra Biswas AIR 1934 Cal 480.
[4]Mathri v. State of Punjab AIR 1964 SC 986; Hathi Singh v State of Rajasthan 1979 SCC (Cri) 976.
[5] AIR 1960 SC 160.
[6]SahebraoKisan Jadhav v. State of Maharashtra (1992) CrLJ 339 (Bom).
[7] Dal Chand v. State of Rajasthan (1966) CrLJ 236(Raj).
[8]Surjit Singh v State of Punjab (2007) 15 SCC 391.
[9]Matiullah Sheikh v. State of West Bengal AIR 1965 SC 132.
[10]Bijay Kumar Mohapatra v. State of Orissa (1982) CrLJ 2162 (Ori).
[11] KI Vibhute, PSA Pillai’s CRIMINAL LAW, 854 (12 th edition, 2014), LexisNexis.
[12] KI Vibhute, PSA Pillai’s CRIMINAL LAW, 853 (12 th edition, 2014), LexisNexis.
[13] Section 444, Indian Penal Code, 1860.
