Every individual has a right to the full enjoyment of their property without any disturbance, this is the reason trespass was made an offence. Even though trespass is ordinarily a civil wrong for which the defendant can sue for damages, but when such trespass occurs with a criminal intention it amounts to criminal trespass. If your enjoyment of your property, whether movable or immovable is disturbed due to criminal activities of any kind, be it theft or assault, you can seek remedy under the Indian Penal Code (IPC). For instance, X unlawfully and without Y’s permission enters into Y’s house to steal his grandfather’s antique watch, X would be liable for theft as well as criminal trespass. Further, the offence of criminal trespass may be aggravated depending upon the facts of certain cases. Consider the same example, with an additional fact that X entered Y’s property at night or in order to enter the assaulted Y, then X would have a greater liability. As the subject of criminal liability is so vast, the Indian Penal Code (IPC) has discussed criminal trespass in 22 sections, commencing from Section 441, IPC to Section 462, IPC.
MEANING AND DEFINITION OF CRIMINAL TRESPASS UNDER IPC
According to Section 441 of The Indian Penal Code, whoever enters into the property in the possession of another with the intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into such property, but remains there with intent thereby to intimidate, insult or any such person, or with an intent to commit an offence, is said to commit ‘criminal trespass’. Thus it can be deduced that criminal trespass occurs when a person unlawfully without any right or an express or implied license enters into the private property of another person or remains into such property with a criminal intention. The object of making criminal trespass an offence is to ensure that people can enjoy their private property without any kind of interruption from outsiders.
Punishment for criminal trespass, as prescribed in Section 447 of IPC is either imprisonment which may extend to three months, or a fine which may extend to INR 500, or both.
ESSENTIAL INGREDIENTS OF CRIMINAL TRESPASS
Criminal trespass has two essentials, firstly, entering into the property of another with criminal intent, and secondly, entering lawfully but remaining in the property with a criminal intent to harm or cause annoyance. Thus the essential ingredients for committing Criminal trespass are:
- Whoever enters
To commit the offence of criminal trespass, there must be an actual entry into the property of another by the accused person. No trespass can occur if there is no physical instrument by the accused into the private property of the victim.
In the state of Culcutta vs Abdul Sukar the court held that constructive entry by a servant does not amount to entry, under this Section as even though there was no possession in law, there was possession in fact. For instance, X throws garbage outside Y’s house on a daily basis, in this case, X may be liable for nuisance but he has not committed criminal trespass as there is no entry by X into Y’s property.
The term property under this Section includes both movable and immovable property. Wrongful entry into one’s car or other movable property would have similar liability as wrongful entry into one’s house.
In Dhannonjay v Provat Chandra Biswas, the accused drove away from the boat of the possessor after attacking him. The court held that this would amount to criminal trespass even though it was movable property. But the term property does not include incorporeal property or something which cannot be touched, such as patent rights.
- Possession of another
The possession of the property should be in the possession of the victim and not the trespasser. Having ownership of the property is not necessary, mere possession is sufficient to claim criminal trespass against the trespasser. However, it is not necessary for the person having possession or the owner of the property to be present at the time when the trespassing occurred, no presence of the owner or possessor would also amount to trespassing as long as the premises are entered into by the trespasser to annoy. For instance, writing love letters and delivering them to a girl’s house against her will would also amount to criminal trespass, even if at the time of delivering such letters, the girl was not at home.
If it is proved that the intention of the accused parties was not to insult, harm or annoy the owners or possessors of the property, then it would not amount to criminal trespass. The Intention is the essence of this crime, and if there is no dominant motive to commit the crime, no criminal trespass. The test for determining whether the entry was done with an intent to cause annoyance or any kind of harm is to determine the aim of a trespasser at the time of such entry.
AGGRAVATED FORMS OF CRIMINAL TRESPASS
The offence of criminal trespass may be committed on different occasions having different magnitudes and penalties. Depending upon the time of the trespass, its purpose, and the nature of the property trespassed, the offence may be aggravated and specific punishments are prescribed for those specific cases. Further, a crime may be aggravated by the way it is committed and the end for which it is committed.
Trespassing into the property where a man resides and stores his belonging is an aggravated form of criminal trespassing as the greatest safeguard is required against the habitation of people. Trespassing against such property is known as house trespass and is governed by Section 442 of IPC.
House trespass may be further aggravated if it is done in a way to avoid attention, known as lurking house trespass, and is governed by Section 443 of IPC. House trespass is also aggravated when it is done violently, known as house-breaking, and governed by Section 445 of IPC.
House trespass of any form may be aggravated based on the time when it is committed, an offence taking place at night is more serious than an offence that took place during the daytime. Housebreaking by night is governed by Section 446 of IPC.
DISHONESTLY BREAKING OPEN RECEPTACLE CONTAINING PROPERTY
Meaning and punishment for dishonestly breaking open receptacles containing property are defined under Section 461 of IPC. The said section punishes whoever dishonestly or with the intent of committing mischief, breaks or opens any receptacle or container used as storing place. The offence is cognizable, non-bailable, and triable by any magistrate and the punishment for the same may extend up to 2 years, fine, or both. The ingredients of this offence would be:
- There was a closed container or receptacle;
- It contained property or the accused believed it contained property;
- The accused intentionally broke opened the receptacle;
- The accused did so dishonestly;
- The accused did so with the intent to cause mischief.
The term ‘receptacle’ signifies all kinds of vessels and not only includes a safe box, chest, or closed package but also includes a room or a part of a room such as a warehouse, or godown. The only condition is that such a vessel must be closed by means of chain or bolt or fastened in any manner. The offence is said to be completed as soon as the receptacle is broken or unfastened with dishonest attention to steal or cause any other kind of mischief.
If a stranger or for that matter even a known person enters any property in your possession with an intent to cause harm or injury, then such a person would be liable for committing an offence of criminal trespass under IPC and remedy can be sought by any court of law. While determining the offence of criminal trespass it is necessary to have an intention to commit wrong and mere knowledge would not amount to criminal trespass. Further, the punishment prescribed for the offence of criminal trespass would depend upon the aggravation that occurred while the crime was committed. House-trespass is a more serious offence than mere criminal trespass, lurking house-trespass and house-breaking are aggravated forms of house-trespass and lastly lurking house-trespass by night and housebreaking by night would attract the highest kind of punishment.
- Sood, Jyoti Dogra. “PSA PILLAI’S CRIMINAL LAW.” (2018): 357-360.
- Ratanlal Ranchhoddas. Ratanlal & Dhirajlal’s the Indian Penal Code (Act XLV of 1860). New Delhi :Wadhwa & Co., 2007.
 AIR 1960 CAL 189
 AIR 1934 Cal 480
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