A critical appraisal of Criminal Trespass under Indian Penal Code

- K Remruatfela

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 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;
*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 AIR 1964 SC 986* 
_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.
*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.
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.
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.
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.
*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 AIR 1971 SC 1254*, 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.'_
*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.
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.
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 *Baldewa v. Emperor, AIR 1933 AII 816, 147 Ind Cas 119*, 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._
*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. f 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.[
*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.
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.
*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.



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