Trespass can be of both civil and criminal nature. Ordinarily, trespass is a civil wrong for which plaintiff can sue the offender and can claim damages. Originally, trespass is of civil nature but if this offence is committed with a criminal intention, the nature becomes criminal and it is known as criminal trespass which is a punishable offence under the Indian Penal code. Every individual has a right on to enjoy their property to the fullest. Anything disturbing their right to enjoyment of their property causing damage to the property or intervening in the privacy of an individual with a criminal intention would lead to a liability under criminal trespass.
S. 441 IPC defines criminal trespass as an act of invasion into a property (which is in possession of another) with intent to commit an offence or to intimidate, insult, or annoy any person in possession of such property. Moreover, if a person entered into the property which is in possession of other in a lawful manner, but unlawfully remains there having an intention to intimidate, insult, or annoy any such person having the possession to commit an offence would be held liable for criminal trespass. For instance, if a delivery boy requests a customer to let him enter the living room for the purpose of delivery, but without permission, he enters into the bedroom for the purpose of annoying the customer while having a criminal intention, he would be liable for criminal trespass. The reason for making criminal trespass an offence is solely related to the interest of people, letting them enjoy their private property without any interference by the outsiders. A person held liable for criminal trespass would be given punishment under S. 447 of IPC i.e. imprisonment up to three months, or fine that may extend to Rs five hundred, or both.
INGREDIENTS OF TRESPASS
- Unauthorized entry– In the case of State of Calcutta V. Abdul Sukar, the court held that that constructive entry by any person would not amount to criminal trespass under this section. An Actual entry into the property of another person is must by the offender to make him liable for criminal trespass.
- Possession of property– The property being refereed here can be both movable and immovable property and it should be in the possession of the other person. Moreover, movable property like car will serve as the same liability as that of a house i.e. an immovable property. In the case of Dhannonjoy V. Provat Chandra Biwas, the court stated that the term property means every property where immovable or movable except the properties which are incorporeal or cannot be touched such as patent rights of a person.
The victim should have the lawful possession of the property, and moreover, sole ownership of the property is not necessary. The presence of the owner or the possessor of the property at the time of the offence is irrelevant. This means that a person would be held liable for criminal trespass even if there is no one present at the house. In another case of Trilochan Singh V. The Director, Small Industries, a boy sends a love letter to a girl and delivered the letter at her residence. The innocent girl got annoyed as the boy entered her house to deliver this letter. Even though the girl was not present at her house when the boy delivered the letter, still he was held guilty of criminal trespass by the Madras High Court.
- Intention– The fundamental purpose of the law related to criminal trespass is to safeguard the people from getting intervened/interfered from enjoying the rights of their private property. Therefore, if a person commits criminal trespass having no intention to harm, insult or annoy the owner of the property, then he would not be held liable for criminal trespass. Motive usually does not play an important role in determining whether a crime has occurred or not. But in this case, motive plays a major role in determining the act of a trespasser as it clears that whether the act committed is out of his criminal intention or of some necessity.
Under Criminal trespass, the main element is the commission of an offense. For Example, an act of a person entering a movie hall without a ticket is not covered under the category of criminal trespass. The intention of a trespasser to commit an offence should be an actual one and absolute. Proving that the person who committed the trespass had the knowledge that his act would create annoyance is not sufficient. Intention of committing the offence is necessary to be proved while proving the motive of the criminal trespass would definitely stronger the case of the prosecution. The same was stated in the case of Ramzan Misrty V. Emperor.
VARIOUS FORMS OF TRESPASS
Criminal trespass is a broader group of offences and as the ingredients change, the nature of the act and its penalties changes.
S. 442 of the IPC defines “House-trespass”-Whoever commits criminal trespass by entering into any building, tent, or any place of worship is said to commit house-trespass. It is an aggravated form of trespass. As house trespass involves trespass against the possession of the house/property, therefore, the fact that the property is under the possession of the victim is important for imposing a liability on the offender. S. 448 of IPC awards punishment of imprisonment that can extend up to 1 year, or a fine that may extend up to Rs 1000, or both.
S. 443 of the IPC defines “Lurking House trespass”, under which the offender takes some effective measures/steps to conceal the presence of a person who has the right to exclude the trespasser from the building. This act is more aggravated as compare to house trespass. Active and aggressive steps must be taken by the trespasser to conceal the presence, otherwise, the offence cannot be brought under the view of S. 443 of IPC. The same was held in the case of Prem Bahadur Rai V. State of Sikkim. S.453 gives the punishment of Lurking house trespass as imprisonment that may extend up to 2 years, and fine depending upon the damages. The punishment can be increased to 3 years of imprisonment if the same offence would take place at night i.e. after the sunset and before the sunrise, according to S. 456 of IPC.
S. 445 of the IPC defines “House Breaking“- a person is held liable for this offence if he enters or quits the house by any of the methods mentioned below:
- If he enters by himself or by the abettor.
- If he enters or quit by opening a lock.
- If he enters or quit for committing an offense by criminal force.
The punishment of House breaking trespass is mentioned under S. 453 of IPC which imposes a penalty of imprisonment not exceeding 2 years and fine as per the damages. S. 446 of IPC defines Housebreaking in night. The above punishment of 2 years imprisonment may extend up to 3 years with fine as per the damaged caused under S. 456 of IPC if the same offence will take place at night i.e. after the sunset and before the sunrise.
Most of the times criminal trespass is considered as burglary or a less serious crime. Though it is a misdemeanour, or an infraction as discussed in detail. In some cases, it can be a felony too. Seriousness of an offence generally depends upon the circumstances of the various cases. In addition to it, a person committing criminal trespass can also be sued for civil trespass according to the circumstances of the case as trespass is a violation of someone’s property rights. Timing of the offence i.e. day or night and the place where the offence took plays and important role in deciding intention and motive of the offender which itself decides the liability or the punishment to be imposed.
- Criminal Trespass, BLB LEGAL
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- Criminal Trespass-Aggravated Forms, Blog IP Leaders
- Criminal -Trespassing, Legal Encyclopaedia
 AIR 1934 Cal 480.
 AIR 1963 Mad 68.
 162 Ind Cas 231.
 1978 CriLJ 945