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Criminal Trespass and House Breaking as Under Indian Penal Code

Enjoyment of one's property without any intrusion is the right of every person and the act of curtailment of such right is what makes trespass an offence.

Trespass in common language means to enter another's property without his permission express or implied or right.[1] The term ‘trespass' is generally viewed as a civil wrong and it simply means entry on someone's land or property without permission.

When a Trespass is done with a criminal intention, it amounts to criminal trespass and is regarded as a punishable offence under Indian Penal code, 1860.
If a person's right to enjoyment of property, whether movable or immovable is curtailed due to criminal activities of another person, be it theft or assault, the IPC offers remedy for such an infringement of right.
The subject of Criminal trespass has been discussed in IPC in 22 sections starting from sections 441 to 462.

Criminal Trespass

Definition of Criminal Trespass

Section 441 of IPC defines Criminal trespass in the following words,
Whoever enters into 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.

Consequently, it may be inferred that criminal trespass is divided into two parts, the first part refers to the act when someone unlawfully, without any right or an express or implied license, enters into the private property of another person and the second part in which the entry is lawful but the person remains in such property with a criminal intention which makes the act unlawful.

Punishment for Criminal Trespass

The punishment for criminal trespass has been defined 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.'

Thus, Punishment for criminal trespass, as prescribed in Section 447 of IPC is either imprisonment which may extend to three months, or fine which may extend to INR 500 or both.

Ingredients of Criminal Trespass

The essential ingredients[2] of Criminal trespass 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.
The use of criminal force is not a necessary ingredient.

The words preceding the term ‘property under Section 441, IPC, are entry ‘into or ‘upon. It is clear from the usage of the latter words that the Section does not apply to incorporeal property like right of fishery, right of easement, right of ferry etc. It applies to corporeal property or property which according to this Section is capable of being entered upon or entered into. The question arises now is whether this Section extends its application to both movable and immovable property.

The answer to this is that the term property as used under Section 441 is wide enough to include both forms of property-movable or immovable as both can be entered into as well as entered upon. Thus, there can be a criminal trespass into a car, boat etc.[3]

The concept of possession embraces both actual and constructive possession. Possession may exist in law but not in fact and such possession is termed as constructive. Entry in or upon the property of another person may cause annoyance to the owner even if he be not present at the time of entry. A trespass with intent to cause annoyance to the owner may conceivably be made even though the owner be not present at the time of the trespass.

The cause of annoyance is the violation of the rights of ownership and not the presence or absence of the owner at the time of trespass. The degree of annoyance may be more in the case of trespass in the presence of the owner but it is not correct that no annoyance is caused if the owner is not present at the time of trespass.[4]

Intention forms an important ingredient of Criminal Trespass:

That means, if intention referred in Section 441 is not proved then no offence of criminal trespass has taken place. The intention has to be gathered from the facts and circumstances of the case. For instance, a person entering into the property of his neighbour with an intention to save his life from imminent danger commits civil trespass, he has not committed the offence of criminal trespass. In other words, a person in exercise of his Right to private defence, entering into the property of someone else, with no criminal intent, will not be held liable under the offence of Criminal Trespass.

In the case of Mathuri and Ors. vs. State of Punjab,[5] The Supreme Court held that in order to establish that the entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; that it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the persons entering; that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the Court has to consider all the relevant circumstances including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability of something else than the causing of such intimidation, insult or annoyance, being the dominant intention which promoted the entry.

There is a distinction between the phrases with intent and with knowledge; it must be proved by the prosecution that the accused had the intention to intimidate, insult or annoy when he made the entry, and it is not enough that the prosecution should ask the court to infer that the entry is bound to cause intimidation, insult or annoyance. A mere knowledge that the trespass is likely to cause insult or annoyance does not amount to an intent to insult or annoy within section 441 of the Indian Penal Code.[6]

In Noorul Huda Maqbool Ahmed vs Ram Deo Tyagi And Others[7],
During the communal riots in early 1993 in the city of Mumbai, the persons in a bakery called Suleman bakery were firing at the police picket from the terrace of the bakery. The police warned the miscreants to stop their nefarious activities but they were not deterred by the presence of SOS (Special Operations squad) and continued to pelt bottles, acid bulbs and stones towards the police members of the SOS. The Joint commissioner Tyagi ordered the SOS squad to break open the door of Suleman bakery to arrest the miscreants.

In the process, some policemen opened fire injuring many and killing few inmates. The Supreme Court in this case held that the accused who was leading the team had given orders to break open the place in the course of his duty to control the riots and he did so under justifiable conditions. Also, there was no common object of killing the people after entering the bakery so breaking open the door did not amount to any illegality. A trespass becomes a criminal trespass if it is with an intention to annoy or to do something illegal which was not the case here.

In Isaac Isanga Musumba and Others v. State of Maharashtra and Others[8],

Complainants alleged that petitioner-accused (Ugandan nationals) illegally entered into the head office of their company and demanded 20 million dollars claiming that they had international arrest warrants against complainants and upon failure to pay said sum, complainants would face dire consequences.

It was held by the court that there was a business transaction between the petitioner and respondent and if the petitioner visited the premises of complainants to make a demand towards their dues, a case of Criminal Trespass under Section 441 cannot be made out against the petitioner for such visit.

House Trespass

Definition of House Trespass

Section 442 defines house-trespass in the following manner:

Whoever commits criminal trespass by entering into or remaining in any 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.[9]

The relation between Sections 441 and 442, IPC, is such as that of Sections 378 and 380, IPC. Section 378 defines theft and Section 380 provides for punishment in case of theft being committed in any building tent or vessel being used as human dwelling or for custody of property. Likewise, Section 441 defines criminal trespass and Section 442 provides for an aggravated version in form of house trespass where the criminal trespass takes place in any building, tent or vessel used as human dwelling or, any building used as place for worship or for custody of property.[10]

Section 448, IPC, provides for punishment for the offence of house trespass, i.e. ‘imprisonment of either description for a term which may extend to one year, or fine which may extend to one thousand rupees, or both.

Essential ingredients of House Trespass

The essential ingredients of house-trespass are that (a) the accused committed criminal-trespass that he trespassed by unlawfully entering into or (b) by remaining on the property unlawfully after initial lawful entry; (c) that such trespass was in respect of a building, tent or vessel; and (d) that such building, tent or vessel was used as a human dwelling or as a place of worship or as a place for storing property.[11]

House-trespass is an aggravated form of criminal-trespass, which has been defined under Section 441 of the IPC and which is punishable under Section 447 of the IPC. It is, therefore, obvious that before a person is held to be guilty of an offence punishable under Section 452 of the IPC, it must be shown that in the alleged trespass, all the elements of ‘criminal-trespass' or ‘house-trespass' were present.

Section 452. House-trespass after preparation for hurt, assault or wrongful restraint:

Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.[12]

To postulate an offence under Section 452 of IPC, it has to be established (a) that the accused committed house trespass and (b) that the same was committed after making preparation for causing hurt to, or for assaulting or for wrongfully restraining, some person, or for putting some person in fear of hurt, or of assault, or of wrongful restraint. If either of the two requirements is not satisfied Section 452 would not be attracted.[13]

In Moreshwar V. State of Maharashtra And Another[14], The appellant had committed trespass in the premises occupied by the complainant and her husband as tenants and the appellant had tried to outrage her modesty. The Learned Senior Counsel, in this case, contended that it was an offence under Section 451 which provides for the commission of house trespass in order to the committing of any offence punishable with imprisonment. It was held that the appellant had entered the house occupied by the complainant for seeking sexual favours and not for causing any physical hurt or assault or wrongful restraint. The court held that the offence made out against the appellant is only under Section 451 and not under Section 452.

Aggravated forms of House Trespass

The aggravated forms of House Trespass are laid down in Sections 449-452. The aggravated form of house trespass is determined by the gravity of the offence.

Section 449. Whoever commits house-trespass in order to the committing of any offence punishable with death, shall be punished with imprisonment for life, or with rigorous imprisonment for a term not exceeding ten years, and shall also be liable to fine.

An act can be said to be committed "in order to the committing of an offence" even though the offence may not be completed. Thus, if a person commits a house trespass with the purpose of the committing of theft but has failed to accomplish the purpose, it will be proper to say that he has committed the house trespass in order to the committing of theft. there can be no doubt that the words "in order to" have been used to mean "with the purpose of". If the purpose in committing the house trespass is the commission of an offence punishable with death the house trespass becomes punishable under s. 449 of the Indian Penal Code.[15]

Section 450. Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment for life, shall be punished with imprisonment of either description for a term not exceeding ten years and shall also be liable to fine.

In case of Surjit Singh v. State of Punjab[16], The appellants along with other co-accused committed criminal trespass into the house of deceased Harbans Kaur for the purpose of raping her. The attempt seemed to be unsuccessful because the sons of deceased had started shouting for help. Surjit Singh (one of the accused) alleged that if she stays alive she will implicate them all and therefore Harbans Kaur should be killed; on listening this, his co-accused gave a brickbat blow on her head, after which she died. The accused were held guilty under Section 450, IPC, along with other charges levied against them.

Section 451. Whoever commits house-trespass in order to the committing any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years.

In Ameen Vs. State of Kerala[17], The appellant committed criminal trespass by entering into the varandah of the dwelling house of Babu with intent to commit an offence. The appellant thereby committed the offence of house-trespass. But he committed house-trespass not for committing any offence punishable with death. Therefore Sec. 449 of IPC was not attracted. The court therefore set aside his conviction and sentence under Sec. 449 of IPC. Only Sec. 451 of IPC was attracted. The Court convicted him thereunder and imposed on him a sentence of rigorous imprisonment for two years and a fine of Rs. 15,000/-.

Lurking House Trespass

Lurking house-trespass has been defined in Section 443 of IPC, whereas house breaking has been defined in Section 445 thereof.

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.

In the case of Nasiruddin v. State of Assam[18], the Supreme Court held that:
Lurking house Trespass means that the accused took some active means to conceal their presence. The accused would take some steps to escape notice.

In Lokesh Kumar V. State (NCT of Delhi) And Another[19],
The complainant had contended that he had locked his house while going out and on return he found the door of the balcony open. When he ran towards the balcony he saw one person jumping from the balcony and running away. In this case, it was observed that for a person to commit lurking house-trespass, the prosecution not only has to establish house-trespass but has also to prove that the accused has taken precautions to conceal such house-trespass from some person who has a right to exclude or reject the trespasser.

The statement of the complainant showed that when he returned he saw the balcony of the house open which establishes that there was no attempt made by the accused (petitioner in this case) to conceal the house-trespass. Since there was no evidence to show that the accused had not taken any precaution to conceal the house-trespass, the offence of lurking house-trespass was not made.

Section 444. Lurking house-trespass by night:

Whoever commits lurking house-trespass after sunset and before sunrise, is said to commit lurking house-trespass by night.[20]

The term night means or covers period ‘after sunset and before sunrise'. The mere fact that house trespass is committed during night time does not make the offence of lurking house trespass by night.[21]
The offence of lurking house trespass during night has been punished under Section 456, IPC, with imprisonment for a term which may extend to three years and fine. The maximum punishment given under this section is one year more than that given under Section 453, IPC, which is for lurking house trespass when committed during day.

In order to constitute lurking house-trespass, the offender must take some active means to conceal his presence. If mere trespass committed by night does not constitute lurking house-trespass even if the darkness helps the accused to conceal his presence. Concealment of the accused on account of darkness does not convert the house-trespass into lurking house trespass.

In Buddha v. Emperor[22], the Lahore High Court held that in order to constitute lurking house-trespass, the offender must take some active means to conceal his presence. The precaution to conceal house-trespass has to be taken before committing house-trespass. If a person, after committing house-trespass, tries to hide himself on seeing the occupant of the house, it cannot be said that he had, before committing house-trespass, taken any precaution to conceal his act from the owner or occupier of the house in which trespass is committed by him.[23]

House Breaking

House breaking is a house trespass committed in a violent manner. Section 445 defines House-breaking in the following manner:

Section 445. House-breaking:

A person is said to commit house-breaking who commits house-trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; or if, being in the house or any part of it for the purpose of committing an offence, or having committed an offence therein, he quits the house or any part of it in any of it in such six ways.

House trespass would constitute lurking house trespass when the person committing house trespass has taken precaution to conceal such trespass from a person who has a right to exclude or eject the trespasser from the building which is subject matter of the trespass House-trespass would become house-breaking if the trespasser effects his entrance into the house or any part of it or if being in the house or any part of it for the purpose of committing an offence or having committed an offence therein he quits the house or any part of it in any of the following ways:
  1. If he enters or quits through a passage by himself, or by any abettor of the house-trespass, in order to the committing of the house-trespass.
     
  2. If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building.
     
  3. If he enters or quits through any passage which he or any abettor of the house-trespass has opened, in order to the committing of the house-trespass by any means by which that passage was not intended by the occupier of the house to be opened.
     
  4. If he enters or quits by opening any lock in order to the committing of the house-trespass, or in order to the quitting of the house after a house-trespass.
     
  5. If he effects his entrance or departure by using criminal force or committing an assault or by threatening any person with assault.
     
  6. If he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house-trespass.

Explanation: Any out-house or building occupied with a house, and between which and such house there is an immediate internal communication, is part of the house within the meaning of this section.[24]

Section 446. House-breaking by night-Whoever commits house-breaking after sunset and before sunrise is said to commit house-breaking by night.

The offence of house-breaking by night has been punished under Section 456, IPC, with imprisonment for a term which may extend to three years and fine. In all the cases of housebreaking by night, there must be house-trespass and in all house-trespass there must be criminal trespass, committed during night. If the purpose in committing the house trespass is the commission of an offence punishable with death the house trespass becomes punishable under s. 449 of the Indian Penal Code.

If the purpose in committing the house trespass is the commission of an offence punishable with imprisonment for life the house trespass is punishable under s. 450 of the Indian Penal Code. Similarly, ss. 451, 454 and 457 will apply if the house trespass or lurking house trespass, or lurking house trespass by night or house breaking by night are committed for the purpose of the offence indicated in those sections. Whether or not the purpose was actually accomplished is quite irrelevant in these cases.[25]

Section 460 incorporates the concept of Constructive liability. Under Section 460 IPC, constructive liability is imposed on persons jointly concerned in committing lurking house trespass or house breaking by night, in the course of which death or grievous hurt is caused. The section applies to persons who actually committed house trespass at night and the act of causing death or grievous hurt by any one of the intruders would make others, who did not cause the injury, equally liable.[26]

Conclusion
If a person enters into the property (movable or immovable) owned by someone, either unlawfully or having entered lawfully but remains there unlawfully with a criminal intention would be liable for committing the offence of criminal trespass under IPC.

What distinguishes Civil trespass from criminal trespass is the mens rea i.e., criminal intent. The punishment for criminal trespass will depend on the severity of the offence when it was committed.
House-trespass is an aggravated form of criminal-trespass. It is, therefore, obvious that before a person is held to be guilty of an offence punishable under IPC, it must be shown that in the alleged trespass, all the elements of ‘criminal-trespass' or ‘house-trespass' are present.

If the offence of house-trespass is further aggravated by the entry or departure of a forcible nature or entry or departure, through any passage not intended for human entrance or departure, then the offence becomes house-breaking. The intent forms an essential ingredient in all the three.

End-Notes:
  1. Philip Babcock (ed.), Webster's Third New International Dictionary p. 2439. (G. & C. Merriam Co, US, 1976).
  2. Mathri v. State of Punjab AIR 1964 SC 986.
  3. Dhanonjoy v. Provat Chandra Biswas, AIR 1934 Cal 480.
  4. Sant and Anr. v. The Union of India AIR 1962 HP 1.
  5. AIR 1963 SC 986.
  6. Baldewa vs Emperor, AIR 1933 All 816, 147 Ind Cas 119.
  7. Noorul Huda Maqbool Ahmed v. Ram Deo Tyagi (2011) 7 SCC 95.
  8. (2014) 15 SCC 357.
  9. Indian Penal Code (45 of 1860).
  10. Fundamentals of Crime, Criminal Law and Criminal Justice, available at: https://epgp.inflibnet.ac.in/ (Visited on April 29, 2020)
  11. Md. Salauddin & Anr v. The State of West Bengal & Another, (2015) 153 AIC 447.
  12. Indian Penal Code (45 of 1860).
  13. State of Maharashtra (through Rural Police Station, Ratnagiri) v. Babu Bhaga Zore and Others, 2020 SCC OnLine Bom 325.
  14. (2005) 11 SCC 429.
  15. Matiullah Sheikh v. The State of West Bengal, AIR 1965 SC 132.
  16. (2007) 15 SCC 391.
  17. Crl. A. No. 100 of 2015
  18. AIR 1971 SC 1254.
  19. CRL.REV.P. 831/2016.
  20. Indian Penal Code (45 of 1860).
  21. Prem Bahadur Rai v. State of Sikkim, 1978 Cri LJ 945.
  22. (1916) 3 AIR Lahore 425
  23. Tilak Raj v. State (N.C.T) of Delhi, ILR (2010) 5 Del 28
  24. Ibid.
  25. Matiullah Sheikh v. The State Of West Bengal, 1965 AIR 132, 1964 SCR (6) 978
  26. Abdul Aziz V. State Of Rajasthan, (2007) 10 SCC 283

    Written By: Mehak Parvez - Rajiv Gandhi School Of Intellectual Property Law, IIT Kharagpur

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