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Trespass in India – Is it Criminal or Civil?

11 min read

Aashima Kakkar

The main reason for having laws in a country is to protect the lives, liberty, and property of all citizens while also maintaining the country’s peace. India’s penal laws are governed by the Indian Penal Code, 1860 (hereinafter as IPC).

One of the most important aspects of the IPC is that it guarantees individuals’ right to property while also prohibiting individuals from interfering with or damaging the property of others. For the same reason, the concept of offences against property was added to the IPC.

Trespass in general terms means to enter a person’s property without his or her consent. For example: ‘X’ enters ‘Y’s property at night unknowingly and causes a disruption to X’s peace and security. Trespassing was once considered a serious offence, punishable by fines or prison time. Trespassing is currently considered a misdemeanor, or a minor crime, in most state jurisdictions.

Types of trespass

Trespass is of 3 major types, namely:

  • Trespass to person
  • Trespass to chattels
  • Trespass to land

Trespass to Persons

Trespass to person is the fear of unreasonable interference with one’s person and body, as well as that of a third person, and it includes the use of force that causes bodily damage and impairment. With the intent of causing wrongful loss or gain, the trespasser violates another’s right and alters it with the goal of causing wrongful loss or gain, as the case may be.

Even if the wrongdoer had no knowledge that the property belonged to someone else, it is considered intentional. Threats, assault, battery, wounding, mayhem, and maiming were all considered separate trespasses in the past. Most jurisdictions now broadly recognize three trespasses to the person:

  • Assault, which is any act of such a nature as to excite an apprehension of battery.
  • Battery, which is any intentional and unpermitted contact with the plaintiff’s person, or anything attached to it and practically identifiable
  • False imprisonment, which is the wrongful impediment to movement or deprivation of freedom from impediment to movement.

Trespass to Chattels

Trespassing to chattels is when someone intentionally interferes with another person’s rightful possession of personal property. Any personal property, movable or immovable, is referred to as ‘chattel’.

Trespass to chattels does not apply to real estate or any other type of land interest. The following elements are needed in order to prove trespass to chattels:

  • Intent to trespass
  • Lack of owner’s interest
  • Interference with chattel

Trespass to Land

Trespass is defined as an unjustified physical interference with land that belongs to one party by another. Trespass is not a criminal act under English common law, where these tort principles originate, but it is recognized in the Indian Penal Code under section 441. However, it defines trespass as unjustified physical interference with the claimant’s possession of property with the intent to do so.

Trespass – Civil or Criminal?

Trespass is an offence not only under the Criminal Law but also the tort law, thus, making it both civil liability and a criminal offence. There is a major difference between both, that is, intention. Civil trespass does not require ill intent; simply being on someone else’s property without permission is enough to make them liable.

Criminal trespass, on the other hand, is defined as trespass with the intent to commit an offence or to intimidate, insult, or annoy any person in possession of property, and is punishable under the IPC.

Illustration

If ‘X’ enters the property of ‘Y’ unknowingly in a state of inebriation, without any intention to cause harm to Y, he will be liable for a civil offence. But if X enters Y’s property for theft of valuable items or attempting to murder him, he will be charged under Section 441 and 447 of the IPC along with section of the other act committed by him.

Criminal trespass

It could be a criminal act, as defined by Section 441 of the Indian Penal Code, 1860, which states that ‘criminal trespass’ as:

“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”.”

This section requires intent because ‘mens rea’ is required for an act to be criminal. This section has the following essentials:

  • Whoever enters
  • Property
  • Possession of another
  • Intention

Whoever enters

To commit the crime of criminal trespass, the accused person must physically enter the property of another. There can be no trespass if the accused does not physically enter the victim’s private property. The court held in State of Calcutta vs Abdul Shukar[1] that constructive entry by a servant does not amount to entry under this Section because there was possession in fact even though there was no possession in law.

For example: If ‘X’ throws garbage outside Y’s house every day, he may be liable for nuisance, but he has not committed criminal trespass because X has not entered Y’s property.

Property

Both movable and immovable property are included in the definition of property in this section. Wrongful entry into one’s car or other movable property carries the same legal consequences as wrongful entry into one’s home. The accused in Dhananjoy v Provat Chandra Biswas[2] drove away from the possessor’s boat after attacking him. Despite the fact that it was movable property, the court determined that this constituted criminal trespass. However, incorporeal property and intangible property, such as patent rights, are not included in the definition of property.

Possession of another

The victim, not the trespasser, should have possession of the property. It is not necessary to own the property; mere possession is sufficient to charge the trespasser with criminal trespass. However, it is not necessary for the person in possession of the property or the owner of the property to be present at the time of the trespassing.

Trespassing can occur even if the owner or possessor is not present, as long as the trespasser enters the premises to annoy. Writing love letters and delivering them to a girl’s house against her will, for example, would be criminal trespass, even if the girl were not present at the time of delivery.

Intention

It would not be criminal trespass if it could be proven that the accused parties’ intent was not to insult, harm, or annoy the property owners or possessors. The intent is the essence of the crime, and there is no criminal trespass if there is no dominant motive to commit the crime. The goal of a trespasser at the time of entry is used to determine whether the entry was made with the intent to cause annoyance or any kind of harm.

The court held in Punjab National Bank Ltd v All India Punjab National Bank Employees’ Federation[3] that the employees who were on strike entered the bank with the intent to only put pressure on management to concede their demands, and that there was no intent to insult, harm, or annoy any of the bank’s superior officers, that their entry into the bank could not be considered criminal trespass. However, if the strikers had stormed into the superior staff’s private cubicles or offices with the intent of causing them annoyance in the given circumstances, it would be considered criminal trespass.

Furthermore, it must be demonstrated that the accused’s intention was not merely probable, but actual, as laid down in Ramzan Mistry v Emperor[4]. For an offence of criminal trespass to be committed, it must be proven that the person entering another’s property had knowledge that his entry would cause annoyance. It must also be proven that there was an intention to commit an offence, or intimidate, insult, or annoy any such person.

Forms of criminal trespass

Criminal trespass can be committed on a variety of occasions, with varying degrees of severity and penalties. The offence may be aggravated depending on the time of the trespass, its purpose, and the nature of the property trespassed, and specific punishments are prescribed for those specific cases. Furthermore, the manner in which a crime is committed and the purpose for which it is committed can both contribute to its aggravation. 

Section 442 –House trespass

House trespass — 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.”

Entering or remaining in any building, tent, or vessel used as a human dwelling, place of worship, or a place for the custody of property is defined under this section as House trespass. A human dwelling need not be a permanent resident of the defendant, temporary residents such as schools or railway platforms can also be considered human dwellings. However, in order for a structure to be considered a human dwelling, it must have walls or some form of security, and a simple fence will not suffice. Because this is an aggravated form of criminal trespass, every house-trespass is criminal trespassing, but not the other way around. Because house-trespass is a crime that requires the defendant to be in actual possession of the property, it cannot be committed if the defendant is not in possession of the property.

Punishment: According to Section 448 of the IPC, a defendant convicted of house-trespass may face a sentence of up to one year in prison, a fine of up to INR 1,000, or both.

Section 443 – Lurking House trespass

“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”.

Section 443 of the Indian Penal Code deals with a type of house-trespass known as lurking house-trespass. This offence is defined as committing house trespass and taking precautions to conceal the trespass from any person who has the authority to exclude or eject the trespasser from the building that is the subject of the trespass.

The court held in Prem Bahadur Rai v State that no charge under Section 443 can be brought unless the accused takes active steps to conceal his presence.

Section 444 – Lurking house trespass by night

Lurking house-trespass by night — Whoever commits lurking house-trespass after sunset and before sunrise, is said to commit “lurking house-trespass by night”.

Section 444 of the Indian Penal Code refers to a more serious form of lurking house-trespass, namely trespass committed at night. This section covers any lingering house trespass committed after sunset and before sunrise.

According to Section 456 of the IPC, this offence is punishable by up to three years in prison and a fine.

Section 445 – Housebreaking

“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 such six ways, that is to say—

(First) —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.

(Secondly) —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.

(Thirdly) —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.

(Fourthly) —If 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.

(Fifthly) —If he effects his entrance or departure by using crimi­nal force or committing an assault or by threatening any person with assault.

(Sixthly) —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.”

Housebreaking is a more serious form of trespassing that entails forcing entry into one’s home. Housebreaking can take place in six different ways, according to Section 445 of the IPC:

  • Through passage made by the house breaker himself
  • Through any passage not used by any person other than the intruder
  • Through any passage opened for committing an offence of housebreaking which was not intended by the house occupier to be open
  • By opening any lock
  • By using criminal force at either entrance or departure 
  • 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.[5]

Section 446 – Housebreaking by night

House trespass in any form can be made more serious depending on the time it is committed; an offence committed at night is more serious than one committed during the day. Section 446 of the IPC governs housebreaking at night that states:

“House-breaking by night — Whoever commits house-breaking after sunset and before sunrise, is said to commit “house-breaking by night”.

Conclusion

If a stranger, or even a known person, enters any property in your possession with the intent to harm or injure you, that person will be charged with criminal trespass under the IPC, and a remedy can be sought in any court of law. In order to be charged with criminal trespass, you must have the intent to commit a crime; mere knowledge does not constitute criminal trespass. Furthermore, the severity of the punishment for criminal trespass would be determined by the aggravation that occurred during the commission of the crime.

  1. State of Calcutta vs Abdul Shukar AIR 1960 Cal 189
  2. Dhananjoy v Provat Chandra Biswas AIR 1934 Cal 480
  3. Punjab National Bank Ltd v All India Punjab National Bank Employees’ Federation 1953 AIR 296
  4. Ramzan Mistry v Emperor 116 Ind Cas 783
  5. Retrieved from “Criminal trespass and its aggravated forms” on 24-03-2021 available at https://blog.ipleaders.in/criminal-trespass-aggravated-forms/

References