Unit 3

Law of Crime II
Criminal Trespass (Sections. 441 to 462)

Prachi Pandya
Assistant Professor
TRESPASSING VERSUS CRIMINAL TRESPASSING
• Regular trespassing, also known as civil trespass, occurs when you are
entering or accessing someone else’s property without his or her
permission. However, you may not be aware that you are on someone
else’s land at the time of the incident — this knowledge is crucial to
defining the difference between trespass and criminal trespass.
• If you know that you do not have permission to be on the property that
you are on, ignore clear no trespassing signs, and continue to remain or
enter the property regardless, you are committing an act of criminal
trespass. Wandering onto someone’s property from your own and not
realizing that you entered someone else’s land would be an act of civil
trespass. Climbing over a fence with a “No Trespassing” sign posted onto it
would be an act of criminal trespass.
• Example:
For instance, X unlawfully and without Y’s permission enters into Y’s house to
steal his grandfather’s antique watch, X would be liable for theft as well as
criminal trespass. Further, the offence of criminal trespass may be aggravated
depending upon the facts of certain cases. Consider the same example, with an
additional fact that X entered Y’s property at night or in order to enter the
assaulted Y, then X would have a greater liability. As the subject of criminal
liability is so vast, the Indian Penal Code (IPC)
 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".
STATE AMENDMENT:
• Orissa
• Amendment of section 441.--In the Indian Penal Code, 1860 (45 of 1860), for section 441, the following
section shall be substituted, namely:--
• Or having lawfully entered into or upon such property, remains there with the intention of taking
unauthorized possession or making unauthorized use of such property and fails to withdraw from such
property or its possession or use, when called upon to do so by that another person by notice in writing,
duly served on him,
Is said to commit criminal trespass.“
• It is important that the aim of entry should be the commission of an offence defined under IPC; by
committing an unlawful act a person shall not be liable for criminal trespass. E.g. If a person enters a
movie hall without a ticket, it shall not amount to criminal trespass.
• The offence depends upon the intention and not upon the nature of the act i.e. if a person
enters his neighbours’ property to protect his animals from a fire he shall not be guilty of
the offence but if a person enters into a house with an intention to commit theft but on
seeing the poverty of household he leaves a 1000 rupee note he still shall be liable for the
offence of criminal trespass.
• The offence of trespass can only be committed over the immovable property which is in
the actual possession of a person. A landlord shall be guilty of the offence of trespass if
forcibly enters the property in possession of tenant and dispossess him after the expiry of
the lease.
• However, a person shall be guilty of the offence even when his entry was lawful but he
remains there with unlawful intention or enters to some part of the property to which he
was not legally entitled.
• E.g. if a delivery boy is requested to stay in the living room but if he intentionally enters the
bedroom in order to annoy the owner he shall be guilty of the offence of criminal trespass.
House Trespass: (Sec.442 to Sec.446)
• A person commits house-trespass if he:
• Commits criminal trespass
• By entering into or remaining in (a) any building, tent or vessel used as a human dwelling or
(b) any building used as a place of worship or as a place for the custody of property.
• House-trespass is of three kinds- i) Lurking House-trespass ii) Lurking House-trespass by night
iii) Housebreaking
• Lurking House-trespass= House-trespass + Concealment of identity
• Lurking House-trespass by night= Lurking House-trespass + Night i.e. before sunrise and after
sunset.
• House breaking= House-trespass + entry through six specified ways i.e. passage made by
himself or abettor, climbing over a wall, the unintended passage opened by him, by opening
any lock, by using criminal force or by any passage which was fastened against such
entrance.
• House-breaking by night= House-trespass + Night i.e. before sunrise and after sunset.
• In the criminal trespass there are specific house trespass and lurking of house
trespass included and also property trespass included.
Punishment for criminal trespass.(Sec.447):
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.
Punishment for house-trespass.(Sec.448):
Whoever commits house-trespass shall be punished with imprisonment of either description
for a term which may extend to one year, or with fine which may extend to one thousand
rupees, or with both.
Ingredients of Criminal Trespass:
Criminal trespass has two limbs,
• firstly, entering into the property of another with criminal intent and
• secondly, entering lawfully but remaining in the property with a criminal intent to harm or
cause annoyance. Thus the essential ingredients for committing Criminal trespass are:
1. Whoever enters’:
• To commit the offence of criminal trespass, there must be an actual entry into the property
of another by the accused person. No trespass can occur if there is no physical instrument
by the accused into the private property of the victim.
• In the State of Calcutta vs Abdul Sukar, the court held that constructive entry by a servant
does not amount to entry, under this Section as even though there was no possession in
law, there was possession in fact. For instance, X throws garbage outside Y’s house on a daily
basis, in this case, X may be liable for nuisance but he has not committed criminal trespass
as there is no entry by X into Y’s property.
2. Property:
• The term property under this Section includes both movable and immovable property.
Wrongful entry into one’s car or other movable property would have similar liability as
wrongful entry into one’s house.
• In Dhannonjoy v Provat Chandra Biswas, the accused drove away from the boat of the
possessor after attacking him. The court held that this would amount to criminal trespass
even though it was a movable property. But the term property does not include incorporeal
property or something which cannot be touched, such as patent rights.
3. Possession of another:
• The possession of the property should be in the possession of the victim and not the
trespasser. Having the ownership of the property is not necessary, mere possession is
sufficient to claim criminal trespass against the trespasser.
• However, it is not necessary for the person having possession or the owner of the property
to be present at the time when the trespassing occurred, no presence of owner or possessor
would also amount to trespassing as long as the premises are entered into by the trespasser
to annoy. For instance, writing love letters and delivering them to a girl’s house against her
will would also amount to criminal trespass, even if at the time of delivering such letters, the
girl was not at home.
4. Intention:
• If it is proved that the intention of the accused parties was not to insult, harm or
annoy the owners or possessors of the property, then it would not amount to
criminal trespass. The Intention is the essence of this crime, and if there is no
dominant motive to commit the crime, no criminal trespass. The test for
determining whether the entry was done with an intent to cause annoyance or any
kind of harm is to determine the aim of a trespasser at the time of such entry.
• Case:
• In Punjab National Bank Ltd v All India Punjab National Bank Employees’ Federation,
the court held that as the employees who were on strike entered the bank with the
intention to only put pressure on the management to concede their demands, and
there was no intent to insult, harm or annoy any of the superior officers, their
entrance into the bank cannot amount to criminal trespass. However, if in the given
circumstances, the strikers would have stormed into the private cubicles or offices of
the superior staff with the aim of causing annoyance to such members, then it
would amount to criminal trespass.
• Further, it is to be proved that the intention of the accused was not probable
but an actual one, this principle was laid down in Ramjan Misrty v Emperor. It
is not sufficient to show that the person entering into the property of another
had the knowledge that his entrance would cause annoyance, it is to be
proved that there was an intention to commit an offence, or intimidate, insult
or annoy any such person for an offence of criminal trespass to take place
Aggravated forms of criminal trespass:
• The offence of criminal trespass may be committed at different occasions having
different magnitudes and penalties. Depending upon the time of the trespass, its
purpose and nature of the property trespassed, the offence may be aggravated and
specific punishments are prescribed for those specific cases. Further, a crime may be
aggravated by the way it is committed and the end for which it is committed.
• Trespassing into the property where a man resides and stores his belonging is an
aggravated form of criminal trespassing as the greatest safeguard is required against
the habitation of people. Trespassing against such property is known as house
trespass and is governed by Section 442 of IPC.
• House trespass may be further aggravated if it is done in a way to avoid attention,
known as lurking house-trespass and is governed by Section 443 of IPC. House
trespass is also aggravated when it is done violently, knowns as house-breaking and
governed by Section 445 of IPC.
• House trespass of any form may be aggravated based on the time when it is
committed, an offence taking place at night is more serious than an offence
that took place during the day time. Housebreaking by night is governed
by Section 446 of IPC.
 House trespass
• Section 442 of IPC, defines house-trespass as committing criminal trespass by
entering into or remaining in any building, tent or vessel used as a human
dwelling, place of worship or as a place for the custody of the property.
• A place of human dwelling does not always have to be a permanent resident of the
defendant, temporary residents like school or railway platforms also count as a
human dwelling. However for a building to be a human dwelling it must have some
walls or some kind of security and a mere fence cannot amount to a human
dwelling.
• This offence is an aggravated form of criminal trespass, thus every house-trespass
is criminal trespassing but not vice versa. As house-trespass is against the
possession of a property, it cannot take place if the defendant is not in actual
possession of the property.
• 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
• Section 443 of IPC, deals with a further aggravation of house-trespass, known as lurking
house-trespass. The section defines this offence as committing house trespass and taking
precautions to conceal the offence of house-trespassing from any person who has a right
to exclude or eject the trespasser from the building which is the subject of the trespass.
• In Prem Bahadur Rai v State, the court held that unless active steps are taken by the
accused to conceal his presence, no charge under Section 443 can be made. Thus the
ingredients of lurking house-trespass would include:
a. Trespass;
b. House-trespass;
c. Concealing the house-trespass from someone who has the right to exclude to the
trespasser.
• Therefore hiding in a porch behind a tree would fall within this section and the trespasser,
under Section 453 of IPC, would be liable to imprisonment for a maximum of 2 years and
fine as may be prescribed by the court.
 Lurking house-trespass by night

• Section 444 of IPC, talks about an aggravated form of lurking house-trespass,

i.e trespass committed at night. Any lurking house-trespass committed after
sunset and before sunrise fall within the ambit of this section. This offence is
punishable with imprisonment not exceeding three years and fine, according
to Section 456 of IPC.
 House-breaking
• Housebreaking is also an aggravated form of house-trespass and implies
forceful entry into one’s house. Section 445 of IPC lays down 6 ways in which
housebreaking can occur, namely:
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.
• The first three ways are the one in which entry is effected by using passage
which is not the ordinary means of entry or exit and the last three ways are
the ones in which entry is effected by use of force. The entry of any part of
the human body is sufficient to constitute housebreaking under Section 445
of IPC if the following ingredients are present:
1. Trespass;
2. House-trespass;
3. The entrance by the trespasser must be done in any of the 6 ways
prescribed above.
• In Pullabhotla Chinniah case, the court held that the 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 and the accused will be liable for imprisonment
not exceeding 2 years and fine under Section 453 of IPC.
 Housebreaking by night

• 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.
 Dishonestly breaking open receptacle
containing property
• Meaning and punishment for dishonestly breaking open receptacle
containing property are defined under Section 461 of IPC. The said
section punishes whoever dishonestly or with the intent of
committing mischief, breaks or open any receptacle or container used
as storing place.
• The offence is cognizable, non-bailable and triable by any magistrate
and the punishment for the same may extend up to 2 years, fine, or
both.
• The ingredients of this offence would be:
1. There was a closed container or receptacle;
2. It contained property or the accused believed it contained property;
3. The accused intentionally broke opened the receptacle;
4. The accused did so dishonestly;
5. The accused did so with the intent to cause mischief.
• The term ‘receptacle’ signifies all kinds of vessels and not only includes a safe
box, chest or closed package but also includes a room or a part of a room such
as a warehouse, or godown. The only condition is that such a vessel must be
closed by means of chain or bolt or fastened in any manner. The offence is said
to be completed as soon as the receptacle is broken or unfastened with
dishonest attention to steal or cause any other kind of mischief.