Criminal Trespass

In this paper an attempt is made to clear out the concept of criminal trespass and what are the provisions in India related to it. Criminal trespass basically refers to an unlawful entry by an individual into a personal property of another person. A person who enters the property of another without the owner’s permission is claimed to have committed the offence of criminal trespass. All round the globe, trespass against the property has been recognized as a tort. However, tons of nations, including India have made it a criminal offence too. In India, criminal trespass is ordinarily a tort and typically compensation damages are granted. Trespass with a criminal intention is a criminal offence. It is punishable under the Indian Penal Code.

Introduction

Trespass doesn’t require a state of data, but only requires the act of entering. Civil and criminal trespass both involves entering an owner’s land without permission. Criminal trespass involves entering or remaining during a place knowing one is there without a license or privilege. Trespass involves simply entering ashore without the consent of the landowner. An example of criminal trespass is standing in an apartment complex ahead of a no trespassing sign. An example of civil trespass is walking into a homeowner’s gated garden without his permission. A person commits the crime of criminal trespass if he knowingly enters or remains on another individual’s property without the owner’s consent. Criminal trespass is really what most of the people consider as “breaking and entering.” The definition of ‘Criminal trespass’ in Black’s Law Dictionary is stated  as “A person who enters on the property of another without any right, lawful authority or an express or implied invitation or license”[1].

Criminal trespass basically refers to an unlawful entry by an individual into a personal property of another person. A person who enters the property of another without the owner’s permission is claimed to possess committed the offence of criminal trespass. All round the globe, trespass against the property has been recognized as a tort. However, tons of nations, including India have made it a criminal offence too. In India, Criminal trespass is ordinarily a tort and typically compensation damages are granted. Trespass with a criminal intention is a criminal offence. It is punishable under the Indian Penal Code. The rationale for creating it a criminal offence is to stay the trespasser away then that the owners enjoy their property with none interruptions.

Traditionally, the foremost specific requirement of trespass, whether civil or criminal is ‘intent’. Just the unlawful presence of an individual on someone else’s property isn’t enough. It’s to be shown that the person knew that he wasn’t allowed to get on the property which he still chose to travel on other’s land, with ill intent. Knowledge could also be inferred when there’s a fencing done, or when there’s a ‘no trespass’ check in the property. An individual are often held responsible for trespass publicly places too, if he or she enters after the hour or if they fail to go away even when asked to. It must be demonstrated that the unlawful entry was with an intention to commit an offence, or to intimidate or to harass the one that owns the property. The intent to intimidate, insult or annoy may be a must for trespass of a criminal nature.

Criminal Trespass under Indian Penal Code

Indian legal code deals with the offence of criminal trespass in 22 sections, commencing from sections 441 to 462. Trespass in common language means to travel on another’s property without his permission express or implied or right. Trespass is ordinarily a tort that the defendant can sue for damages. However, if trespass is committed with a criminal intention, it’s treated as criminal trespass punishable under Indian legal code. Criminal trespass is defined under section 441. The aim of making trespass a criminal trespass is to keep away any outsider to enter in the private space of someone so that the person can enjoy his privacy.

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’[2].

Section 441 has two parts. The first refers to an entry into the property in the possession of another with intention to commit an offence or to intimidate, insult or annoy the person in the possession and the second to the remaining in possession having lawfully entered into the property with intention of intimidating, insult or annoying the person in possession of such property, or with the intention of committing such offence.

The essential ingredients of criminal trespass are:

  • There must be unauthorized entry into or upon another’s property against the will of the person in the possession; or
  • An authorized entry lawfully obtained but unlawfully remaining therein; and
  • Such entry or unlawful stay must be with an intention;
  • To commit an offence or,
  •  To intimidate, insult or annoy the person in possession of the property[3].

The offence of criminal trespass is committed if an individual enters upon property in possession of another with the intent to commit an offence or to intimidate or insult or annoy a person in possession of the property. The test for determining whether the entry over property within the possession of another person was made with the intent to harass is whether or not causing of, annoyance was the most aim of the entry, that is, the dominant intention which prompted the entry. For establishing the offence it’s not merely sufficient to point out that the person entering upon the property of another had knowledge that his act would cause annoyance, but, the entry must be with an intention to commit an offence.

The second a part of the section deals with a situation wherein the entry of an individual into or upon the property is lawful, but his continuing presence there becomes unlawful. Not only should the continuing presence become unlawful, but, it should be with the intent to intimidate, insult or annoy any such person or with intent to commit an offence. However, if the remaining is unlawful, but not with the requisite intention to commit an offence or to intimidate, insult or annoy the person in possession, then it’ll not amount to an offence under this section.

Punishment for criminal trespass is given under section 447 of Indian Penal Code: Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which can reach three months, or with fine which can reach five hundred rupees, or with both[4].

The offence of criminal trespass has various forms and all of them are mentioned under the IPC. Sec. 442 defines “House-trespass”. Sec. 443 defines “Lurking House-trespass”. Sec. 444 defines “Lurking House-trespass by night”. Sec. 445 defines “House-breaking”. Sec. 446 defines “House-breaking by night”. Sec. 447 prescribes punishment for Criminal trespass. Sec. 448 prescribes punishment for house- trespass. Sec. 449 to Sec. 462 defines as well as prescribes various punishments for the aggravated forms of house-trespass and house breaking[5].

Cases

In Mathri v. State of Punjab[6], the accused, alongside others, armed with warrants for delivery of possession in execution of several decrees, entered upon the property in possession of another. When the entry takes place, warrants were ceased to be executable in law. The Supreme Court held that the accused et al. had entered the property only with the intention to commit an offence or to intimidate, insult, or annoy a person.

In State Of Maharashtra Vs. Tanba Sadadhio Kumbi[7], the accused was a president of a faculty committee. He entered the varsity and beat up two boys, who had quarrelled together with his nephew. At that point, the headmaster wasn’t present. Subsequently, the headmaster returned and reprimanded the accused for his behaviour. The accused was incensed and he abused the headmaster and tried to manhandle him. The headmaster pushed him back and subsequently the accused left threatening physical harm to the headmaster as soon he came out of the varsity. The Bombay Supreme Court held this case would be covered by the second a part of section 441.

Dhannonjoy v. Provat Chandra Biswas[8]; in this case after attacking him, the accused drove the lessee of a boat away and took the possession of the boat. The accused then plied the boat away after taking money from the boat. The Calcutta high court held that this would amount to criminal trespass.

Punjab National Bank Ltd.  v. All India Punjab National Bank Employee Federation: In this case, the workers of the bank, in furtherance of a protest, sat within the  place in the bank premises but refused to figure. It had been contended that the workers had trespassed with the intent to insult or annoy their superior officers and hence amounted to committing of criminal trespass. However, the Supreme Court held that albeit the entry is assumed to be unlawful, it can’t be accepted that the entry was made with the intent to insult or annoy people. The sole intention of the workers was to place pressure on the authorities. The court stated that the difference between knowledge and intention should be borne in mind while deciding if a particular matter falls under S. 441. The court held that the act of the workers didn’t amount to criminal trespass.

Defences

There are many defences to trespass to land; license, justification by law, necessity and jus tertii. License is express or implied permission, given by the possessor of land, to get on that land. These licenses are irrevocable unless there’s a flaw within the agreement or it’s given by a contract. Once revoked, a license-holder becomes a trespasser if they continue to be on the land. Justification by law refers to those situations during which there’s statutory authority permitting an individual to travel ashore, like the Britain and Wales’ Police and Criminal Evidence Act 1984, which allows the police to enter land for the needs of completing an arrest, or the California state constitution, which allows protests on grocery stores and strip malls, despite their presenting a general nuisance to store owners and patrons[9].

Jus tertii is where the defendant can prove that the land isn’t possessed by the plaintiff, but by a 3rd party, as in Doe d Carter v. Barnard[10].This defence is unavailable if the plaintiff may be a tenant and therefore the defendant a landlord who had no right to offer the plaintiff his lease (e.g. an illegal apartment rental, an unauthorized sublet, etc.). Necessity can be the situation during which it’s the only way to commit the trespass; in Esso Petroleum Co v. Southport Corporation[11], the captain of a ship committed trespass by allowing oil to flood a shoreline. This was necessary to guard his ship and crew, however, and therefore the defence necessarily was accepted. Necessity doesn’t, however, permit a defendant to enter another’s property when alternative, though less attractive, courses of action exist.


[1] http://legalfictionwarfixins.wefreepeople.org/uploads/1/1/7/0/11701677/1_do_not_trespass_intro.pdf.

[2] https://bnblegal.com/article/criminal-trespass

[3] https://bnblegal.com/article/criminal-trespass

[4] Section 447; Indian Penal Code, 1860.

[5] http://lawtimesjournal.in/criminal-trespass

[6] AIR 1964 SC 986

[7]AIR 1964 Bom 82

[8] AIR  1934 Cal 480

[9] Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980)

[10] [1849] 13 QB 945

[11] [1956] AC 28

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