CRIMINAL TRESPASS SEC.441-462 IPC
When somebody enters into the property of another person without their permission it is known as a Trespass. And if the intention behind such trespass is criminal, then it’s an offence under Sec.441 of IPC and is called as a Criminal Trespass.
REASON BEHIND MAKING IT A CRIMINAL OFFENCE:
Everybody has a full right to enjoy their property freely according to their wish & will. Ordinarily trespass is considered as a civil wrong and if somebody enters into the property of another the owner of the property can claim damages. But if the trespass is done with a criminal intent, then one can file a case under IPC. If somebody causes disturbance in the enjoyment of your property, whether movable or immovable, with a criminal intention by causing theft or assault, it is a punishable offence.
A enters into the property of B without his permission and steal his cow. Then B is liable for a criminal trespass along with theft.
In the same situation, if A enters into the property of B without his permission steals his cow and at the same time assaulted B as well. Then B is liable for a criminal trespass along with theft and assault. &
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INGREDIENTS OF CRIMINAL TRESPASS:
To constitute the offence of Criminal Trespass, basically two conditions need to be fulfilled:
One, there should be an entry into somebody’s else property and
SSecondly, that entry should be unlawful and the person entering should remain in that property with a criminal intent to harm the property and cause annoyance to the other person.
To commit the offence of Criminal Trespass, there should be an actual entry into the premises of another without his permission. The owner of the property should be in actual possession of the property at the time of the trespass. For example, in State of Calcutta vs. Abdul Sukar, the court held that constructive entry by a servant does not amount to entry, under this Section. If X throws garbage outside Y’s house on a daily basis, X may be liable for nuisance but he has not committed criminal trespass as there is no entry by X into Y’s property.
AAlso the term Property includes both Movable & Immovable Property. If one enters into somebody’s car without his permission, he would be liable in the same manner, as if he has entered into his house. <
As stated earlier, to commit the offence of criminal trespass the property should be in actual physical possession of the person. Having ownership rights over the property is not essential but a mere possession of the property is sufficient enough to constitute the offence of criminal trespass. Also, it’s not necessary that the owner of the property should be present at the sight when such trespass takes place. If the trespass is committed with an intent to annoy the owner or a person who is in actual possession of the property, the ground is sufficient enough for criminal trespass.
The most important element in the commitment of any crime is the intention with which its being done. Similarly for Sec. 441 also, if there is no intent on the behalf of the accused to cause annoyance, insult or harm to the owner of the property, then it is not a criminal offence. <
In Punjab National Bank Ltd v All India Punjab National Bank Employees’ Federation,, the court held that since the intention of the employees who were on strike could not be established as to annoy, insult or harm anyone and they just entered the bank with the intention to put pressure on the management for the fulfilment of their demands, hence their entrance into the bank cannot amount to criminal trespass. However, if the employees would have stormed into the offices with the aim of causing annoyance to any member and would have caused any destruction or damage to the property, then it would amount to a criminal trespass.
PUNISHMENT FOR CRIMINAL TRESPASS
The offence is penalised under span>Section477 of the IPC. The offender is either ppunished with imprisonment of either description for a term which may extend to three months, with fine or which may extend to five hundred rupees, or with both.’
EXTENTION OF CRIMINAL TRESPASS
The offence of criminal trespass is too vast to be just covered under one section. It is divided into 22 sections starting from Sec.441 and going up till Sec.462 under IPC. Hence based on the magnitude and the intensity of the crime, criminal trespass is broadly divided into 4 categories:
- House Trespass- Sec.443
- Lurking House Trespass- Sec.444
- Lurking House Trespass by Night- Sec.445
- House Breaking- Sec.446
Trespassing into the house of another where a man lives and keeps his belongings and valuables is considered an aggravated form of trespass. It is not necessary that it is always a permanent house structure; the dwelling can be temporary also. However to term it as a human dwelling, it should be surrounded by four walls and should have some security around. A mere fencing around a plot does not come under human dwelling.
As per Section 448 of IPC, the defendant guilty of house-trespass may be imprisoned for a term not exceeding 1 year, fined for INR 1,000 or less or both.
LURKING HOUSE TRESPASS
The offence of Lurking House trespass is committed when a person commits House Trespass and takes all the steps to conceal this offence. <
Hence to constitute the offence under Lurking House Trespass, one should first commit trespass, then commit house trespass and then conceal the offence of house trespass from someone who has a right over that property.
In Prem Bahadur Rai v State of Sikkim, 1977, the court held that unless active steps are taken by the accused to conceal his presence, no charge under Section 443 can be made. <
Punishment for Lurking House Trespass is prescribed under under Section 453 of IPC, which is imprisonment for a maximum of 2 years and fine as may be prescribed by the court.
LURKING HOUSE TRESPASS BY NIGHT
Any house trespass committed after sunset and before sunrise falls under the ambit of Lurking House Trespass at Night. This offence is punishable with imprisonment not exceeding three years and fine under Section 456 of IPC.
Housebreaking involves a forceful entry into somebody else’s house. Section 445 puts down the following conditions for a House Breaking to take place:
1. Through passage made by the house breaker himself;
2. Through any passage not used by any person other than the intruder;
3. Through any passage opened for committing an offence of housebreaking which was not intended by the house occupier to be open;
4. By opening any lock;
5. By using criminal force at either entrance or departure;
6. By entering or quitting any passage fastened against such entrance or exit. The word ‘fasteners’ implies something more than being closed, merely pushing of door shutters would not amount to house-breaking.
Hence to conclude the offence of House Breaking, one should first commit the offence of Trespass, then House Trespass and while committing these 2 offences, his entry must comply with any of the above mentioned 6 ways.
The offence of House breaking is punishable under Sec.453 of IPC and amounts to punishment not exceeding 2 years and fine. Similarly, when housebreaking is committed after sunset and before sunrise, it is considered an aggravated form of house-breaking and is governed by Section 446 of IPC. This offence is punishable with imprisonment not exceeding three years and fine, according to Section 456 of IPC.
In Pullabhotla Chinniah vs. Unknown AIR 1917, the Madras High Court Held that breaking open of a cattle-shed in which agricultural implements are kept would also amount to house-breaking. Further, making a hole in the wall to enter a house, using a window to enter a house, assaulting the guard or doorkeeper to enter a house, all amount to housebreaking.<
There is one more form of Trespass: Dishonestly breaking open receptacle containing property. It comes under Sec. 461 of IPC which says whoever dishonestly or with the intent of committing mischief, breaks or opens any receptacle or container used as a storing place, is liable for punishment which may extend up to 2 years, fine or both. This offence is cognizable, non-bailable and triable by any magistrate.
TThe term ‘receptacle’ signifies all kinds of vessels, safe box, chest, closed package, a warehouse, or a godown which contains property. The two main ingredients which distinguish this offence with the earlier forms of trespass are: committing it dishonestly and with intent to cause mischief. The only condition is that such a vessel must be closed by means of chain or bolt or fastened in any manner.
OTHER IMPORTANT CASE LAWS
- Dhannonjoy v Provat Chandra Biswas, AIR 1934 Cal 480
- Ramjan Misrty v Emperor 162 Ind Cas 231
- Prem Bahadur Rai v State& (1978) CR.
POINTS TO REMEMBER
1.It's the intention of the act which matters in constituting the offence of Criminal Trespass rather than the nature of act. For E.g.: if somebody has entered into the premises of another with an intention of saving their animals from fire, then it is not Criminal Trespass. <
2. Commission of an offence is necessary to make the entry unlawful. Just an act which is unlawful in nature does not amount to an offence. Entering a movie hall without a ticket is not Criminal Trespass.
3. There is a difference between Civil & Criminal Trespass which depends upon the ill intent of the accused. Civil Trespass does not require ill intent Vis-a Vis Criminal Trespass, where it is the essential ingredient.