CRIMINAL TRESPASS

Section 441-462 of Indian Penal Code

Submitted By

Dr. Sanket Manerikar

F.Y.L.L.B

Roll No. 28
INTRODUCTION

 Trespass in legal terms is the physical interference of an unauthorized person into either a land or
chattel or body of the aggrieved person.
 Trespass is an offence which is defined in both the Indian Penal Code as well as in the law of
torts.
 In India, Criminal trespass is ordinarily a civil wrong and usually compensation damages are
granted.
 However, trespass with a criminal intention is treated as a criminal offence and is punishable
under the IPC.

INDIAN PENAL CODE

Sections 441 to 462 of the IPC deal with the offence of criminal trespass and its aggravated forms.

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”.

Section 441 has two parts.

The first part is regarding entry into property in the possession of someone else with the
intention to commit some offence or to intimidate, insult or annoy that person.

The second part refers to the remaining in the property unlawfully, after entering into it lawfully,
with the intention of committing an offence or insulting, intimidation or annoying that person.
Essential ingredients

The essential ingredients of criminal trespass are-

1. Entry into a property which is in someone else’s possession
2. If this entry is lawful, then unlawful remaining on that property
3. With the intention to
• Commit an offence
• Intimidate, insult or annoy the person in possession of that property

‘Whoever enters’

The section opens with the words ‘whoever enters’ which implies that there must be an actual
entry upon the property by the accused. For example, constructive entry by a servant will not
amount to entry within this section.

Property

The word property in this section covers both movable and immovable property. Hence, there
can be criminal trespass to a motor car, boat, airplane etc.

In (Dhanonjoy v Provat Chandra Biswas ), a boat has been leased. The accused attacked the
person to whom it was leased, drove it away and plied it across the river to collect money. It was
held that this would amount to criminal trespass.

Possession of another

For the offence to be committed, the entry into the property should be in respect to the
property in possession of someone other than the trespasser himself. The legality of that
possession is, however, immaterial. It is also not essential that the person in possession of the
property is present in the property when the trespass takes place.

Intention
Entry into the property should be with the intention to commit an offence or insult, intimidate or
annoy the person in possession of the property.

 Mathri v State of Punjab, the accused along with others, entered the property with
warrants. However, at the time they entered the property, the warrants had ceased to be
executable in law. The Supreme Court held that since the accused only entered with the
intention of executing the warrant, this act did not constitute the offence of criminal
trespass.
 Punjab National Bank Ltd v All India Punjab National Bank Employee’ Federation, the
employees went on a strike in which they occupied their seats but refused to work or
vacate the premises. The bank contended that the employees’ entry was only lawful on
 the condition of them working. They also contended that the employees had entered the
property with the intention of insulting and annoying their superior officers and hence it
amounted to criminal trespass. The Court held that even if the strikers had knowledge
that their strike might annoy their seniors, such knowledge cannot amount to intention.
Thus, the acts of the employees did not amount to criminal trespass.

In order to constitute the offence of criminal trespass, it is not necessary that the accused
actually commits an offence or actually intimidates, annoys or insults the person in possession of
the property. Mere intention to do so will amount to criminal trespass. This intention can be
inferred from the circumstances but it must be actual and not a probable one.

Remaining unlawfully after lawful entry

If the accused enters the property lawfully but subsequently remains on it unlawfully, it would
amount to criminal trespass if the above mentioned intention is present.

 State of Maharashtra v Tanba Sadadhio Kunmbi, the accused, the vice chairman of the
school committee, entered the school and beat up two boys who had a fight with his
nephew. On being reprimanded by the headmaster, the accused abused and threatened
him. The Court held that this would be covered by the second part of section 441, IPC.

Punishment for criminal trespass

Section 447 of the IPC lays down that anyone who commits criminal trespass shall be punished
with imprisonment of a term which may extent to three months and/or fine which may extend
to five hundred rupees.

Section 442

Anyone who commits criminal trespass by entering into or unlawfully remaining in-
• Building, tent or vessel used as a human dwelling
• Building used as a place for worship
• Building used as a place for the custody of property,

Punishment with Imprisonment of term extending to one year and/or Fine extending to one
thousand rupees. (Sec. 448)
Section 443

(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”.

This offence is punishable with imprisonment extending to two years plus fine. (Sec 453)

Section 444

(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 445

(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 it

Section 446. House-breaking by night.

Whoever commits house-breaking after sunset and before sunrise, is said to commit "house-breaking by
night".

Punished with imprisonment of either description for a term which may extend to three years, and shall
also be liable to fine. (Sec 456).

Section 449.

House trespass in order to commit offence punishable by death.

Punishable with rigorous imprisonment for a term not exceeding ten years and fine. (Sec459)

Section 450

House trespass in order to commit offence punishable with imprisonment for life:

Punishable with imprisonment for a term not exceeding ten years and fine.

Section 451

House trespass in order to commit an offence punishable with imprisonment:

Punishable with imprisonment for a term which may extend to ten years plus fine and if this
offence is theft then the imprisonment may extend to ten years. (Sec 454)

Section 452

House trespass after preparation for hurt, assault or wrongful restraint:

Punishable with imprisonment which may extend to ten years plus fine. (Sec 455).

Section 460

All persons jointly concerned in lurking house-trespass or housebreaking by night punishable where
death or grievous hurt caused by one of them.

Punished with imprisonment for life or with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.

Section 461.

(Dishonestly breaking open receptacle containing property).

Whoever dishonestly or with intent to commit mischief, breaks open or unfastens any closed receptacle
which contains or which he believes to contain property.

Punished with imprisonment of either description for a term which may extend to two years, or with
fine, or with both.
Section 462.

(Punishment for same offence when committed by person entrusted with custody.)

Whoever, being entrusted with any closed receptacle which contains or which he believes to contain
property without having authority to open the same, dishonestly, or with intent to commit mischief,
breaks open or unfastens that receptacle.

Punished with imprisonment of either description for a term which may extend to three years, or with
fine, or with both.

Proper Approach to Lodging a Case of Criminal Trespass

Step 1 -

 One should lodge an FIR at police station as per the jurisdiction.

 If the Police inspector refuses to lodge an FIR then
 Write an application to respective City’s Police Commissioner and
 If in rural area then apply complaining against the PI stating his refusal to lodge
an FIR in spite the criminal trespass even though being a cognizable offence.

Step 2 –

 Then go ahead with the private complaint by filing a court case under Section.
441, Section. 447 r/w of Indian Penal Code and Section.156 (3) of Criminal
Procedure Code.
 Judicial Magistrate First Class will instruct the police station to do further
investigation
 Submitting all the proofs to court of law related to FIR lodging steps.
 With proper evidences against the accused one will get the remedy.

THANK YOU