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Criminal Trespass Under IPC And Recent Judicial Rulings

Enjoyment of one's property without any interference is the right of every individual and the act of limitation of such right is what makes trespass actionable.

Trespass in common English implies to invade another's property without his permission express or implicit or right. The phrase 'trespass' is often seen as a civil wrong because it simply implies entering on someone's land or property without permission. When a Trespass is done with a criminal motive, it amounts to criminal trespass and is recognized as a punishable offence under Indian Penal code, 1860.

If a person's right to enjoyment of property, whether mobile or immovable is abridged owing to illegal activity of another person, be it theft or assault, the IPC gives recourse for such an infringement of right.

This article will delve into the offence of criminal trespass which has been dealt in the IPC from the Section 441 to Section 462, these sections will be analysed by tracking the position of the Indian courts through the years, 2019-2020.

Criminal Trespass Under IPC

Definition
Section 441 defines Criminal trespass as:
"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"[1]

As a result, it can be deduced that criminal trespass is divided into two parts: the first refers to the act whereby someone illegitimately, without any right or an express or implied license, enters into the private property of another person, and the second refers to the act in which the entry is lawful but such person doesn't leave the property with a criminal intention, making the act unlawful.

The punishment for the offence of criminal trespass is given in Section 447,
Which states that:
"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.[2]"

This provision is self-explanatory.

Essential Ingredients For An Offence Of Criminal Trespass To Be Made Out:
  • Entry into or upon property in the possession of another;
  • If this entry is lawful, then unlawfully remaining upon such property;
  • Such entry or unlawful remaining must be with intent:
    • To commit an offence; or
    • To intimidate, insult or annoy the person in possession of the property.

Property

The terms preceding the phrase 'property under Section 441, IPC, are entrance 'into or 'upon. It is obvious from the use of the later phrases that the Section does not apply to incorporeal property like right of fishing, right of easement, right of ferry etc.

It pertains to corporeal property or property which can be entered upon or into. The issue arises is whether this Section is applicable to both immovable and moveable property.

The answer to this is that the word property as used under Section 441 is broad enough to embrace both types of property- immovable or movable since both may be entered into as well as entered upon.

Thus, there might be a criminal trespass into a vehicle, boat etc.

The idea of possession involves both real and constructive possession. Possession may exist in law but not in practice and such possession is called as constructive.

With reference to this section, the possession of property is essential not the ownership, this section protects the possession. Entry in or onto the property of another person may create aggravation to the owner even though he is not there at the moment of entry.

The cause of irritation is the breach of the rights of possession and not the presence or absence of the owner at the moment of trespass. The degree of irritation may be larger in the event of trespass in the presence of the owner but it is not accurate that no annoyance is produced if the owner is not there at the time of trespass.

Intention

In order to determine that entry to the property was intended to annoy, intimidate, or insult, the court must be convinced that the intimidation, or insult is the purpose of entry. The natural consequences of entry can annoy, intimidate or insult, and it is not enough to simply show that the possible consequences are known to the person entering into such property.

In determining whether the target of an entry was such annoyance, intimidation, or insult, the court needs to consider the circumstances and that the person knew that its natural consequences is intimidation, or insult, and need to ensure that such annoyance, insult, or intimidation is the main intent that facilitated its occurrence.[3]

It has to be proven that the trespasser had the intention to commit such an act, it is not sufficient to prove that the trespasser had the knowledge that a certain act can cause annoyance or intimidate the person having the possession.

Section 442

This section defines House trespass as:
"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."[4]

The difference between both these sections is that as Section 441 defines criminal trespass and in the section 442 , the offence of house trespass is an aggravated form of Criminal trespass, in which criminal trespass takes place in any building or place as given in the provision.

The essential elements of trespassing are (a) the accused committing a criminal trespass through trespassing, or (b) staying in property illegally after the first trespassing. (C) Such trespassing has occurred in connection with a building, tent, or ship. (D) Such buildings, tents or ships have been used as human dwellings, places of worship, or places of property storage.

Aggravated forms of House-trespass

These are laid down in Section 449-452 and it is determined by the gravity of the offences.

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."[5]

Even if the crime is not completed, it can be said that the act of "committing a crime" is being carried out.

Therefore, it is no exaggeration to say that you have committed the theft if you intrude with the intention of theft but fail to achieve the purpose. There is no doubt that the word "around" was used to mean "with the intent." If the purpose of the trespass is to commit a death-threatening crime, the trespass will be punished according to this section.

Similarly in the section 450, provides for punishment:

"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."

And the section 451 provides for the punishment of the offence if the offence committed after trespass if punishable with imprisonment, it states,

"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."

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."[6]

In order to establish an offence of lurking house trespass, it is to be shown that the accused person took some steps to conceal their presence i.e should employ active steps to escape the notice of the victim.

The Supreme court in the case where the complainant claimed to have locked his house when he was out and found the balcony door open when he returned home. As he walked to the balcony, he saw a person jump off the balcony and run away. In this case, regarding the lurking trespass, it has to be proved that, the accused has taken precautionary measures to hide such trespass from those who have the right to remove the trespasser[7].

The testimony revealed that he saw the balcony of his house open when he returned. This indicates that the defendant (in this case the petitioner) did not try to hide the trespass. No lurking crime was filed because there was no evidence that the defendant had not taken precautions to cover up the trespass.

The punishment for Lurking house trespass is given in Section 456, which is imprisonment for a term up to 3 years and fine.

The other form of lurking house trespass is, lurking house trespass at night which if established comes with punishment greater than that for lurking house as it carries a punishment of 1 year more than given in section 456.

House-Breaking:

Section 445 defines the offence of house breaking which provides for six ways by which if the person enter the house, then the offence of house breaking will be established. And punishment for offence of house breaking is given in the section 456

If the aim in committing the home trespass is the commission of an offence punishable with imprisonment for life the house trespass is punished under s. 450 of the Indian Penal Code. Similarly, sections 451, 454 and 457 will apply if the house trespass or lurking house trespass, or lurking house trespass by night or home breaking by night are done for the purpose of the crime stated in those sections.

The Section 461-461 deals with the dishonest breaking into a receptacle by a person who didn't have any right(s.461) and even if a person was entrusted with such a property, breaks open such receptacle without any permission or authority, then he will be held liable under this section. Whether or if the purpose was actually attained is totally unimportant in these circumstances.

Summary
If a person gets into the property (movable or immovable) possessed by someone, either unlawfully or having entered legitimately but continues there unlawfully with a criminal intention would be responsible for committing the offence of criminal trespass under IPC.

What differentiates Civil trespass from criminal trespass is the mens-rea i.e., criminal intent. The sentence for criminal trespass will depend on the gravity of the offence when it was committed.

House-trespass is a severe kind of criminal-trespass. It is, therefore, evident that before a person is deemed to be guilty of an act punishable under IPC, it must be proven that in the claimed trespass, all the components of 'criminal-trespass' or 'house-trespass' are present.

If the charge of house-trespass is further exacerbated by the entry or departure of a violent nature or entry or departure, through any channel not meant for human entrance or departure, then the offence becomes house-breaking. The intent constitutes a crucial part in all the three.

Judicial Decisions In The Time Period 2019-2020

  1. Hindustan Motor Finance Corporation Limited v. Superintendent of Police[8]

    The employees of the said corporation who were dismissed after the company didn't have the requisite financials entered the premises of the factory and remained there and threatened the officers present and also threatened to commit suicide in order to get the officials of the company to cede to their demands, the officials of the company reached out to police for help as the employees refused to leave and caused annoyance.

    But no action was taken by the police, thereafter the writ petition was filed before the High court of Madras.

    In this case, the court dealt with the question that whether after getting dismissed or even during the employment period, the employees by staying in the premises after work hours and also threatening the official of the company amounted to criminal trespass.

    The High court of Madras after placing reliance on the decision of the Supreme court in the Chelpark company ltd. v. The commissioner of Police[9] and on Mysore Machinery ltd. v. State of Mysore[10], the court held that :

    Staying within the premises of the factory after the working hours is wholly unjustified and the means adopted by the employees to put pressure to accept their demands weren't lawful, and their act of being in the premises for such a long time is intended to cause annoyance, insult, intimidate and commit offence, thus this fall under the definition of criminal trespass under the section 441 of IPC.
     
  2. Biswajit Paul v. State of Assam[11]

    A group of people armed with sticks, spade and other weapons came to dispossess the petitioner from his land.

    The petitioner filed a case in the district court for many offences, one of them being that of criminal trespass under IPC, but the district court dismissed all the charges, aggrieved by this the matter was put before the High court of Gauhati.

    The court held that to bring the trespass charge home, it must be proven that an unauthorized entrance was made into a property in the ownership of another, and that such unlawful entry was made with the purpose to commit an offense or to intimidate, interest, or annoy the owner of the property. But there existed no proof of ownership and a meeting held to ascertain ownership failed.

    Thus, there is no proof that the aforementioned trespassing factors have been adequately proven, hence the appeal was dismissed.

    Similarly, The High court of Delhi in Jagdish Kumar case[12] and the Allahabad High court in Pawan Kumar v, State of UP[13] also after referring to the issues regarding ownership of the property trespassed didn't hold the act to be criminal trespass under IPC.
     
  3. Satrughana Nag v. State of Odisha[14]

    The appellant in this case entered the house of the respondent at night and tried to disrobe her, but hearing the voices coming from the room, her brothers came and protected her. The section offence under Section 457 was charged in the complaint and the cognizance of the same was taken by the judge at district court.

    The High court while entertaining the appeal, considered the offence charged under section 457, and held that the offence of lurking-house trespass isn't already established if house trespass is committed at night, but there should be active concealment of such entry by the trespasser, but in the present case no such concealment took place. And since the house's door wasn't fastened but only closed with bamboo, which could be opened from outside, therefore, offence of house breaking was also not established.

    The court considered this to be a case of house trespass punishable under the section 448 of the IPC.

Analysis
After having looked into the cases on Criminal trespass and its aggravated forms, one thing which can be deduced that the courts have followed the provisions laid down in the IPC strictly and every decision is based on the conditions as described under the act.

It can be seen from the cases discussed above, that the two most important criteria in deciding the case of criminal trespass are:
  1. Possession of property
  2. Intention of the trespasser

In the first case involving the trespass by the employees in the premises of the factory, the court looked into the right of employees to enter the property and held it to be lawful when done during working hours but staying there when working hours were over was held to be unlawful by the court and the second criteria i.e of intention, in this case, the intention was to cause annoyance to the owners of the property as they even threatened to commit suicide if their demands weren't met, a similar case was decided by the Supreme court in Punjab National Bank v. All India Punjab National Bank employees federation[15] ,the decision in this case was in favour of employees as they did a pen-down strike during the working hours and this wasn't enough to prove their intention of causing annoyance, but in the present case the employees entered lawfully but stayed unlawfully there and even threatened to commit an offence ,thus proving their intention behind the strike.

In the second case too, the decision was based mainly on the factor of ownership or possession of the property to which the trespass took place, though in this particular case, the decision was taken after deciding the ownership of the property, but possession which is the important factor for deciding charge of criminal trespass wasn't emphasized upon, though there were other reasons for taking this decision i.e the original matter took place 10 years ago, and also the witnesses weren't situated close enough to change the decision. That said, I maintain that possession of the property needs to be considered in such cases.

The third case deals with the question of lurking house trespass and the reasoning for the decision taken has been explained before and there isn't much to ponder upon in this case, as it involved categorising the offence by relating its elements to the relevant provision under the IPC, and as the element of active concealment was absent, the offence wasn't categorised as lurking house trespass.

Conclusion
The offence of criminal trespass is dealt with under 22 sections of the Indian Penal Code, beginning with sections 441 to 462 of the IPC. In common parlance, trespass is defined as entering another's property without his express or implicit permission or authority. Under section 441, of the IPC, the components of the crime of criminal trespass are as follows: enter into or upon property in the possession of another, intent to commit an offence, intimidate, injure, or annoy any person in possession, and so on. There are several types of criminal trespass.

The crime of criminal trespass may be committed under many conditions that increase its gravity and need extra punishments in those specific situations, thus we can conclude that the breadth and range of the criminal trespass provision is broad enough to include all trespass-related offenses.

The goal of making trespass a criminal offense is to keep trespassers away from private people premises and dwelling-houses so that one may enjoy his or her property without interruption from any outside intrusion. As a result, trespassing is considered a criminal offense.

On the basis of the above discussion, the penalty and punishment for criminal trespass varies depending on the type of trespass. Some are more serious than others, hence the severity of the penalty is likewise greater in them.

As has been stated before, the term, 'property(its possession/ownership) and 'intention' play a major role in deciding cases of criminal trespass, thus these two factors need to be looked into seriously before moving ahead with the case as these factors vary from case to case.

End-Notes:
  1. Indian Penal Code (1860), 441
  2. Indian Penal Code (1860), 447
  3. Mathura Bai v. Emperor, AIR 1928 All 671
  4. Indian Penal Code (1860), 442
  5. Indian Penal Code (1860), 449
  6. Indian Penal Code (1860), 443
  7. Lokesh Kumar V. State (NCT of Delhi), 2005 SCC Online Del 670
  8. Hindustan Motor Finance Corporation Limited v. Superintendent of Police, 2019 SCC OnLine Mad 2069
  9. Chelpark Company Limited v. The Commissioner of Police, 1967 SCC OnLine Mad 235
  10. Mysore Machinery ltd. v. State of Mysore , 1967 SCC OnLine Kar 75
  11. Biswajit Paul v. State of Assam ,2019 SCC OnLine Gau 3011
  12. Jagdish Kapila v. Raj Kumar, 2019 SCC OnLine Del 8617
  13. Pawan Kumar v, State of UP, 2019 SCC OnLine All 4725
  14. Satrughana Nag v. State of Odisha, 2020 SCC OnLine Ori 885
  15. Punjab National Bank v. All India Punjab National Bank employees federation, AIR 1960 160

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