This blog is inscribed by Rahil Setia
“Boundaries are your responsibility. You decide what is and what isn’t allowed in your life.”
- Brittney Moses
I. INTRODUCTION
A house of an individual is private to him and he is entitled to the fundamental right to privacy. The right to privacy, brings along the right to keep everyone separated from what one considers to be his private space. The law provides several remedies to the person whose personal space is being violated. The Indian Penal Code also recognizes a situation where such intrusion reaches a level of criminal culpability and could be labelled as a Criminal Trespass, it has been defined under section 441 of the Indian Penal Code. Section 441 of the Indian Penal Code contains the ingredients of what constitutes to a Criminal Trespass.
II. CRIMINAL TRESPASS – MEANING
Section 441 of the Indian Penal Code reads as follows:
“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”.
The main intention behind enacting Section 441 was to ensure that people can freely enjoy their private property without any intervention. Punishment for Criminal Trespass has been provided under Section 447 of the Indian Penal Code, which states that it could lead to an imprisonment of up to 3 months or a fine which may extend up to 500 rupees, or both.
III. ESSENTIAL ELEMENTS OF CRIMINAL TRESPASS
Entry into the Property:
Section 441 states that for the offence of Criminal Trespass there must be an actual and physical entry into the property of another person and not any constructive entry.
Nature of the Property:
It provides that property could either be movable or immovable but it does not include incorporeal property i.e., something which cannot be touched.
Property entered upon, must be in possession of another person:
The property must have been in possession of another person when it was entered upon by the accused. It states that ownership of the property by the aggrieved person is not necessary, only the possession by the aggrieved party would be sufficient for them to raise a claim for Criminal Trespass. The physical presence of the aggrieved party at the time of offence of Criminal Trespass is not a prerequisite.
Culpability of Trespasser
The culpability of trespasser is one of the essential elements for an act to amount to Criminal Trespass. If the intention of the accused is not to cause any harm or annoyance to the aggrieved party then that would not constitute to be a criminal trespass. The test of determining whether the entry was made with a culpable mind or not, is done to ascertain the aim of the trespasser when he took entry in the property.
Case: In Ramjan Misrty v. Emperor[1], it was observed that the culpability of the trespasser must be of higher degree and it should not be a mere probability. He must have a clear and unambiguous intention of causing annoyance and trouble to the other person.
IV. VARIOUS FORMS OF TRESPASS
Depending upon the time, place and various other circumstances; criminal trespass under the Indian Penal Code could be of a nature which is considered to be more dangerous and based on this degree of danger that the act of Trespass may pose to the other person, or based on the degree of culpability of intention and various other factors, Criminal Trespass is of the following types:
House Trespass
It is defined under Section 442 of the Indian Penal Code, which states that where an offense of Criminal Trespass is committed at a place used for human dwelling, place of worship or a place of custody of a property, it would amount to House Trespass. This is an aggravated form of Criminal Trespass. Punishment for the aforementioned act is provided under Section 448 of the Indian Penal Code which provides for an imprisonment of up to 1 year or a fine of up to 1000 rupees, or both.
Lurking House Trespass
It has been defined under Section 443 of the Indian Penal Code. It is basically a house trespass which is committed after taking due precautions to ensure that the offence is properly concealed from someone who has the right to eject or to exclude the trespasser. Punishment is provided under Section 453 with an imprisonment of up to 2 years and the fine may be decided by the court as per its discretion.
Lurking House Trespass by Night
It is a further aggravated form of lurking house trespass which is committed after sunset and before sunrise. It is defined under Section 444 of the IPC. Punishment for it is provided under Section 456 which provides for an imprisonment of up to 3 years and fine.
House Breaking & House Breaking by Night
It has been defined under Section 445 of IPC. This section gives a detailed view about the various ways in which House Breaking can occur. House Breaking means House Trespassing accompanied with a forceful entry into one's house. When housebreaking is committed after sunset and before sunrise, it is known as housebreaking by night, defined under Section 446 of IPC. It must be noted that punishment for House Breaking is imprisonment of up to 2 years as provided under Section 453 of IPC and punishment for House Breaking by Night is imprisonment of up to 3 years and fine as provided under Section 456 of IPC.
V. CONCLUSION
It may be said that the bifurcation of Criminal Trespass into its various forms based upon factors like culpability, place, time, connotes a very pragmatic legislative intent. However, the legislature must be on its toes because the miscreants out there are always on a hunt to exploit various loopholes in the criminal justice system. To address these problems, the legislature must bring in timely amendments. However, it would be interesting to observe how the concept of Criminal Trespass under the Indian Penal Code develops and evolves in future.
[1] 162 Ind Cas 231.
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