Overview: CRIMINAL TRESPASS

As per Section 441 of the Indian Penal Code, 1860 criminal trespass is defined as-

Section 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”.

ESSENTIAL INGREDIENTS-

To constitute the offence of criminal trespass, few pre-requisites or requirements are need to be met, they are-

1) Entering into a property which is in possession of another (this not only includes the actual or physical possession but the constructive possession of the property too);

2) The entry should be such that it is done with an intention to commit an offence or insult or annoy the person who is in possession of such property.

The offence of criminal trespass will be constituted only when the trespass will be made with the necessary criminal intention as specified under Section 441 of the Indian Penal Code, 1860.

For example, if a landlord enters a property which has been occupied by a tenant, believing that the tenant has abandoned the premises, it could not be said that the landlord entered the property with an intention to commit any of the pre requisites of criminal trespass and hence he won’t be held liable.

An entry to property which is lawful can become unlawful. For example, the landlord wishes that the tenant should leave the property within 15 days and also serves a notice of the same has been served to him. If the tenant fails to comply to this notice then the offence of criminal trespass might have been committed.

In case, Dhannonjoy v. Provat Chandra Biswas, it was held by the court that taking away of the boat by the accused after attacking the person for a reason to flee does amount to criminal trespass and hence, the person was held liable for the same offence.

In case, Mathri v. State of Punjab, it was held by the Supreme Court that to constitute an offence of criminal trespass, there should be criminal intention as specified under section 441 of the Indian Penal Code, 1860. The court did not find any criminal intention at the part of the accused who was there just to deliver the goods and also had a warrant and hence he wasn’t held liable for the offence of criminal trespass by the court of law.

PUNISHMENT –

The punishment of criminal trespass has been specified under Section 447 of the Indian Penal Code,1860. The punishment is as follows-

1) Imprisonment up to three months, or

2) Five hundred rupees, or

3) Both.

ILLUSTRATIONS-

In case, Punjab National Bank Ltd. v. All India Punjab National Bank Employee Federation-

It was held by the court of law that even though the entry is made and is assumed to be unlawful, it cannot be concluded that the entry of the employees in the bank and not working amounts to insult or annoyance of any form as prescribed under Section 441 of the Indian Penal Code, 1860. This behavior is a type of a protest by them towards the authorities of the bank and cannot be held liable for the offence of criminal trespass by the court.

In case, Ramjan Mistry v. Emperor-

It was held by the court that it is important to prove the criminal intention to insult, annoy or assault but it is equally important to establish that such contention is true and not just based on probabilities. In the absence of the intention to annoy, insult or assault a person cannot be held liable for the offence of criminal trespass. The intention of a person can be established as well as ascertained via the acts which are done by him or her or the conduct.

FAQs

1) Can a person be held liable to use force on a person who is trespassing criminally?

Ans. It depends on how much force is used. Usually, the right to private defence is applicable in such cases.

[The author, Rishi Nandy is a 2nd year law student at Vivekananda Institute of Professional Studies, GGSIPU]

[1] Dhannonjoy v. Provat Chandra Biswas, AIR 1934 Cal 480

[2] Mathri v. State of Punjab, AIR 1964 SC 986.

[3] Punjab National Bank Ltd. v. All India Punjab National Bank Employee Federation, AIR 1960 SC 160.

[4]Ramjan Mistry v. Emperor, AIR 1929 Pat 111