Criminal Trespass: Concept, Essentials and Overview

By | May 20, 2020
Criminal Trespass: Concept

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Criminal Trespass | Overview

This article briefly discusses the aggravated forms of criminal trespass with the help of classification and further the aggravated forms of those forms are mentioned. Finally, the offences which are related to the category of criminal trespass are explained in brief.

Introduction to Criminal Trespass

Before discussing criminal trespass it is important to know that there are certain offences which might be civil wrong but if the harm is more severe or imposes criminal liability then penal code of India includes it as a criminal offence. One such offence is criminal trespass, as trespass is a civil wrong and was also added as a criminal offence under the penal code by its drafters.

The offence of cheating, its form and punishment are dealt in the category ‘Of Criminal Trespass’[1]under the chapter titled ‘Of Offences Against Property[2]in the penal code of India.

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

 This law prohibits unauthorised entry into the property of another person, in which the property may be exclusively in possession of the victim or complainant and need not mandatorily have ownership.[3]

I. Essentials

The essentials of the offence of criminal trespass are as follows:

  1. The accused must enter into or upon the property
  2. That property must be possessed by another
  3. The entry must be- (a.with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or;) (b.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)

Thus, the essentials when fulfilled, is an offence of criminal trespass.

Entering the Property

As the section mentioned the terms whoever enters it must be clear as to what kind of entry is required to make a case of criminal trespass. The entry here is meant to be any person entry into or upon the property by the accused but not a constructive one like an entry made by a servant.[4]It is not required that the entry made must be by use of force, it is sufficient if it is unauthorised or against the will of the possessors of that property.[5]

What kind of property?

The second essential of this section is a possession of the property must be by another, but what kind of property is covered by the scope of criminal trespass offence is not mentioned in the section. The property here includes movable as well as immovable property. Hence in the case of Dhananjoy v. Provat Chandra Biswas, AIR 1934 Cal 480, a boat was leased out and the accused injured the lessee to take possession of that boat. The court held it to be an offence of criminal trespass.[6]This proves that a property can be of any kind to constitute an offence of criminal trespass.

The scope of property does not include intangible things like rights. Such infringement would not amount to the offence of criminal trespass.

Possession of that property

To constitute an offence under this section the property must be possessed by another person and not the trespasser himself.[7]The law intends to protect the interest of the possessors and not the person who are owners. The law does not require the possession to be legal or lawful, all that is required to be proved is that the possession is actual and exclusive. The complainant may file a case of criminal trespass as possessors of a property even though the trespasser is the owner itself. Further, it is not mandatory for that person to be present at the time of criminal trespass, if the entry is made by the accused with the intention as mentioned in the section.[8]

Mens Rea: Intent of the accused

For conviction under this section, the intent of the accused is essential. As the trespass may not be criminal if the accused do not possess the intention to ‘commit an offence or to intimidate, insult or annoy any person in possession of such property’. Thus the objective of the act done by the accused must be driven by his criminal intention.[9]

The prosecution is required to prove this intention of the accused in the court of law,[10]  the absence of which, conviction is impossible under this section.[11]The above intention to intimidate or insult or annoy the person in possession of that property as claimed by the prosecution must be actual.[12]The intention of the accused can be proved by circumstantial evidence in which the accused expresses his intention or by the series of acts undertaken by the accused.[13]

In the case of Mathri v. State of Punjab, AIR 1964 SC 986, the accused entered the house possessed by the victim along with warrants for delivery of possession for the execution of the decree. Although the warrants were not executable under the law, the court of law held that the intention of the accused was not to insult or annoy any person in possession of that property. Thus, the accused was not convicted of criminal trespass.[14]

II. Unlawful after lawful entry. What makes it criminal trespass?

The section punishes for two instances, one is entry coupled with an intention to intimidate or insult or annoy the person who is in possession of the property or commit any offence and the second one is the remaining unlawfully after entering the property lawfully with the intention to intimidate or insult or annoy the person who is in possession of the property or commit any offence.

The entry in the former one may be lawful or may not be, but the accused is punished merely for entering with the requisite intention. Whereas, in the latter case, the entry must be lawful but subsequently, the accused must remain into or upon the property unlawfully with the requisite intention.

The prosecution must prove not only the continuous presence of the accused to be unlawful but also the intention as required under this section. In the case of State of Maharashtra v. Tanba Sadadhio Kumbi, AIR 1964 Bom 82, the accused who was vice-chairman of a school committee had entered a school and beat up boys in that school for personal reasons.

The headmaster of that school who was not present at the time of that incident subsequently visited the school and stated to the accused that such behaviour was not encouraged. The accused due to this, mishandled the headmaster and left threatening. The court held that the act of the accused was covered under the unlawful presence after lawful entry with the requisite intention.[15]

Punishment

The punishment for criminal trespass offence under section 441 is provided in section 447.

447 Punishment for criminal trespass

Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend up to three months, or with fine which may extend up to five hundred rupees, or both

III. Aggravated forms of criminal trespass

The following are the aggravated forms of criminal trespass. The classification of the forms is as follow-

1. House trespass and its aggravated forms

The offence of ‘house-trespass‘ is provided in section 442[16]and its punishment is provided in section  448.[17]The difference between ‘criminal trespass’ and ‘house-trespass’ offences is the property as specified in section 442. It includes ‘any building, tent or vessel’ which is used as a ‘human dwelling’ or ‘as a place for worship’ or ‘as a place for the custody of property’.

442 House-trespass

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

448 Punishment for house-trespass

Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend up to one year, or with fine which may extend to one thousand rupees, or both

 For conviction, the prosecution is required to prove all the ingredients of criminal trespass[18]as well as that the property is a house fulfilling the requirements of section 442. As a matter of fact,[19]  to constitute the offence of house-trespass introducing any part of the trespasser’s body is enough.[20]For example, putting one’s hand into the hole made in a wall of a house is not house-trespass but passing it through the hole would amount to house-trespass.[21]

Aggravated forms of house-trespass

The aggravated forms of house-trespass are the offence of house-trespass in order to commit offence punishable with death in section 449[22], the offence of House-trespass in order to commit offence punishable with imprisonment for life in section 450[23], the offence of House-trespass in order to commit offence punishable with imprisonment in section 451[24]and the offence of House-trespass alter preparation for hurt, assault or wrongful restraint in section 452[25]of the penal code.

The court of law does not require the actual commission of the offence as specified in the sections for the conviction of the accused.[26]

449 House-trespass in order to commit offence punishable with death

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

450 House-trespass in order to commit offence punishable with imprisonment for life

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

451 House-trespass in order to commit offence punishable with imprisonment

Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend up 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  up to seven years

452 House-trespass alter 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 up to seven years, and shall also be liable to fine

2. Lurking house-trespass and its aggravated forms

Another aggravated form of criminal trespass is ‘lurking house-trespass’ which is provided in section 443.[27]The punishment for this offence is provided in section 453 of the penal code.[28]

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

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 up to two years, and shall also be liable to fine

This offence requires the accused to conceal his entry and for this, the accused must be taking some overt steps to conceal his presence.[29]The difference between house trespass and lurking house-trespass lies in the effective steps taken by the accused to conceal his entry from the possessor of that house.[30]

Aggravated forms of lurking house-trespass

The aggravated forms of the lurking house-trespass are the offence of ‘Lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment’ in section 454[31], the offence of ‘Lurking house-trespass or house-breaking after preparation for hurt, assault or wrongful restraint’ in section 455[32]and the offence of ‘Grievous hurt caused whilst committing lurking house-trespass or house-breaking’ in section 459[33]of the penal code.

454 Lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment

Whoever commits lurking house-trespass or house-breaking, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend up to three 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 up to ten years

455 Lurking house-trespass or house-breaking after preparation for hurt, assault or wrongful restraint

Whoever commits lurking house-trespass, or house-breaking, 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 or a term which may extend to ten years, and shall also be liable to fine

459 Grievous hurt caused whilst committing lurking house-trespass or house-breaking

Whoever, whilst committing lurking house-trespass or house-breaking, causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine

3. Housebreaking and its aggravated forms

The offence of ‘house-breaking’ is provided in section 445 of the penal code is an aggravated form of criminal trespass.[34]The punishment for this offence is provided in section 453 of the penal code.[35]The six ways in which housebreaking can take place is classified into two modes, one being through some passage which basically is not allowed to use and the second mode of breaking into the house is by force.

445 House-breaking

A person is said to commit house-breaking who commits house-trespass if he affects 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 such six ways, that is to say—

 First—If he enters or quits through a passage made by himself, or by any abettor of the house-trespass, in order to the committing of the house-trespass

SecondIf 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

Third—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

Fourth—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

Fifth—If he affects his entrance or departure by using criminal force or committing an assault, or by threatening any person with assault

Sixth—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

Illustrations

  1. A commits house-trespass by making a hole through the wall of Z’s house, and putting his hand through the aperture; This is housebreaking
  2. A commits house-trespass by creeping into a ship at a porthole between decks; This is house-breaking
  3. A commits house-trespass by entering Z’s house through a window; This is house-breaking
  4. A commits house-trespass by entering Z’s house through the door, having opened a door which was fastened; This is house-breaking
  5. A commits house-trespass by entering Z’s house through the door, having lifted a latch by putting a wire through a hole in the door; This is house-breaking
  6. A finds the key of Z’s house door, which Z had lost, and commits house-trespass by entering Z’s house, having opened the door with that key; This is house-breaking
  7. Z is standing in his doorway; A forces a passage by knocking Z down, and commits house-trespass by entering the house; This is house-breaking
  8. Z, the door-keeper of Y, is standing in Y’s doorway; A commits house-trespass by entering the house, having deterred Z from opposing him by threatening to beat him; This is house-breaking

Aggravated forms of housebreaking

The section 454,455 and 459 are the aggravated forms of housebreaking which are given along with lurking house-trespass.[36]

4. Lurking house-trespass by night and its aggravated forms

The next aggravated form of criminal trespass is ‘lurking house-trespass by night‘ and it is provided in section 444[37]and the punishment for the same is provided in section 456[38]of the penal code. To constitute an offence under this section it is important to prove that the lurking house-trespass took place after sunset and before sunrise.[39]

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

456 Punishment for lurking house-trespass or house-breaking by night

Whoever commits lurking house-trespass by night, or house-breaking by night, shall be punished with imprisonment of either description for a term which may extend up to three years, and shall also be liable to fine

Aggravated forms of lurking house-trespass by night

The aggravated forms of lurking house-trespass by night are the offence of ‘Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment’ in section 457[40], the offence of ‘Lurking house-trespass or house-breaking by night after preparation for hurt, assault, or wrongful restraint’ in section 458[41]and the offence of ‘All persons jointly concerned in lurking house-trespass or house-breaking by night punishable where death or grievous hurt caused by one of them’ in section 460[42]of the penal code.

457 Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment

Whoever commits lurking house-trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five 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 fourteen years

458 Lurking house-trespass or house-breaking by night after preparation for hurt, assault, or wrongful restraint

Whoever commits lurking house-trespass by night, or house-breaking by night, 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 up to fourteen years, and shall also be liable to fine

460 All persons jointly concerned in lurking house-trespass or house-breaking by night punishable where death or grievous hurt caused by one of them

If, at the time of the committing of lurking house-trespass by night or house-breaking by night, any person guilty of such offence shall voluntarily cause or attempt to cause death or grievous hurt to any person, every person jointly concerned in committing such lurking house-trespass by night or house-breaking by night, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend up to ten years, and shall also be liable to fine

Section 460 talks about the constructive liability of the persons for causing or attempting to cause ‘death or grievous hurt’ by any one of them while committing the offence of ‘lurking house property by night’.[43]Thus, it requires the proof that all the members were actually committing that offence for holding them liable and if a person is merely associating the commission of that crime then there is no liability.[44]

5. Housebreaking at night and its aggravated forms

The offence of ‘house-breaking by night’ is an aggravated form of criminal trespass provided in section 446 of the penal code.[45]The punishment for this offence is provided in section 456 of the penal code.[46]

446 House-breaking by night

Whoever commits house-breaking after sunset and before sunrise, is said to commit house-breaking by night

Aggravated forms of housebreaking at night

The sections 457, 458 and 460 are the aggravated forms of housebreaking by night along with the offence of lurking house-trespass by night.[47]

OTHER RELATED OFFENCES:

The following are the offences which are related to the offence of criminal trespass. These are ‘dishonestly breaking open a receptacle containing property’ in section 461[48]and ‘the punishment for the same when the offence is committed by a person whom the receptacle is entrusted with custody’ in section 462.[49]

461 Dishonestly breaking open receptacle containing property

Whoever dishonestly or with intent to commit mischief, breaks open or unfastens any closed receptacle which contains or which he believes to contain property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or both

462 Punishment for same offence when committed by person entrusted with custody

Whoever, being entrusted with any closed receptacle which contains or which he believes to contain property, without having authority to open the same, dishonestly, or with intent to commit mischief, breaks open or unfastens that receptacle, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both

It is an offence under section 461 the moment the accused ‘dishonestly breaks open or unfastens the receptacle. The receptacle may or may not contain any property in it but the accused must believe so while committing this offence. Thus, section 462 is the aggravated form of section 461 and imposes harsher punishments as it involves the aspect of trust in it, which makes it severe.


[1]Indian Penal Code 1860, ss 441-462

[2]Indian Penal Code 1860, ch XVII

[3]Sahebrao Kisan Jadhav v. State of Maharashtra, (1992) Cr LJ 339 (BOM)

[4]Shwe Kin v. Emperor, (1905) Cr LJ 415

[5]Batakala Pattivada, ILR 26 Mad 29

[6]Dhananjoy v Provat Chandra Biswas, AIR 1934 Cal 480

[7]Dhanna Ram v State of Rajasthan, (2000) Cr LJ 1204 (Raj)

[8]Veerathai v Ramaswamy Iyengar, AIR 1964 Mys 11

[9]Hathi Singh v State of Rajasthan, 1979 SCC (Cri) 976

[10]Mathura Bai v Emperor, AIR 1928 All 671

[11]Damodar Das v EmperorAIR 1923 Pat 56

[12]Ramzan Mistry v EmperorAIR 1929 Pat 111

[13]Keshar Singh v RexAIR 1950 All 157

[14]Mathri v State of PunjabAIR 1964 SC 986

[15]State of Maharashtra v Tanba Sadadhio KumbiAIR 1964 Bom 82

[16]Indian Penal Code 1860, s 442

[17]Indian Penal Code 1860, s 448

[18]Gopal Sahu v. Raju Mishra, AIR 1965 Ori 212

[19]Dal Chand v. State of Rajasthan, (1966) Cr LJ 236 (Raj)

[20]Indian Penal Code 1860, s 442, explanation

[21]Ghulam v. CrownAIR 1923 Lah 509

[22]Indian Penal Code 1860, s 449

[23]Indian Penal Code 1860, s 450

[24]Indian Penal Code 1860, s 451

[25]Indian Penal Code 1860, s 452

[26]Matiullah Sheikh v. State of West Bengal, AIR 1965 SC 132

[27]Indian Penal Code 1860, s 443

[28]Indian Penal Code 1860, s 453

[29]Nasiruddin v. State of Assam, AIR 1971 SC 1254

[30]Budha v. Emperor, AIR 1916 Lah 425

[31]Indian Penal Code 1860, s 454

[32]Indian Penal Code 1860, s 455

[33]Indian Penal Code 1860, s 459

[34]Indian Penal Code 1860, s 445

[35]Indian Penal Code 1860, s 453

[36]Indian Penal Code 1860, ss 454, 455 & 459

[37]Indian Penal Code 1860, s 444

[38]Indian Penal Code 1860, s 456

[39]Prem Bahadur Rai v. State of Sikkim, (1978) Cr LJ 945 (Sikkim)

[40]Indian Penal Code 1860, s 457

[41]Indian Penal Code 1860, s 458

[42]Indian Penal Code 1860, s 460

[43]Sohan Singh Kesar Singh v. State of Punjab, AIR 1964 P&H 130

[44]Faiz Baksh v. Emperor, AIR 1947 Lah 188

[45]Indian Penal Code 1860, s 446

[46]Indian Penal Code 1860, s 456

[47]Indian Penal Code 1860, s 457,458 & 460

[48]Indian Penal Code 1860, s 461

[49]Indian Penal Code 1860, s 462


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