Legal provisions regarding Criminal Trespass under section 441 of Indian Penal Code, 1860.
Trespass (Transgressio) ordinarily is a civil wrong for which the defendant can sue for damages. Trespass signifies a passing over or beyond our right, i.e., a transgression or wrongful act. According to Tomlin’s Law Dictionary, ‘trespass’ is any transgression of the law less than treason, felony, or misprism of either.
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A forcible entry on the land of another with strong hand and against the will of the owner constitutes a trespass. The term ‘Criminal trespass’ has been defined in Black’s Law Dictionary as “A person who enters on the property of another without any right, lawful authority or an express or implied invitation or licence”. But when trespass is committed with a criminal intention, it is treated as an offence and is made punishable under the Indian Penal Code.
Section 441 of the Indian Penal Code states that:
“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 object behind making trespass a criminal wrong seems to be to keep the trespasser away from the property of private persons and thereby to enable them to enjoy their property without any interruptions. Regarding the object of making criminal trespass an offence, the Draft Penal Code (Note N.P. 168) provides that:
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“We have given the name of trespass to every usurpation, however slight, of domination over property. We do not propose to make trespass, as such an offence, except when it is committed in order to commission of some offence injurious to some person interested in the property on which the trespass is committed, or for the purpose of causing annoyance to such a person. Even then we propose to visit it with light punishment, unless it be attended with aggravating circumstances”.
The essence of the offence of criminal trespass lies in an unauthorized entry or an unlawfully retention of the lawful entry with intention to commit an offence or to intimidate, insult or annoy the person in possession of the property.
The essential ingredients of criminal trespass are:
1. Entry into or upon property in the possession of another;
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2. If such entry is lawful, then unlawfully remaining upon such property;
3. Such entry or unlawful remaining must be with intent-
a) To commit an offence; or
b) To intimidate, insult or annoy the person in possession of the property.
The words ‘whoever enters’ means that in order to constitute an offence under Section 441, there must be an actual personal entry, but not constructive entry, upon property by the accused. The entry need not necessarily be by use of force. It is sufficient if the entry is unauthorized and against the will or without the consent of the person in possession of the property.
‘Property’ in Section 441 means immovable corporeal property, and not incorporeal property such as a right of fishery or a right of ferry. Section 411 uses the term ‘property’ in a wide way to cover both movable and immovable property. The accused should enter into or upon property with the intention stated in the provision, to constitute the offence of criminal trespass. Hence, there can be criminal trespass to a motor car, aeroplane, railway carriage or a boat.
The possession must be actual possession of some person other than the alleged trespasser. The offence can only be committed against a person who is in actual physical possession of the property in question. Section 441 contemplates actual physical possession to the exclusion of all other persons and the object of the provision is to protect possession and not ownership. It is not essential that the person who is in possession of the property should be present in the property when the trespass takes place.
Entry into property of another with intention to commit an offence or intimidate, insult or annoy the person is the essence of the offence of criminal trespass. The word ‘intent’ implies ‘aim’ and connotes an ability to carry on an offence with the dominant motive, without which the action would not have been taken.
In order to commit an offence under Section 441, it is not necessary that the person concerned should actually commit an offence, or intimidate or annoy or insult the person in possession upon trespass.
The word ‘intimidate’ must be understood in its ordinary sense ‘to overawe, to put in fear, by a show of force or threats of violence. The word ‘annoyance’ must be taken to mean annoyance that would generally and reasonably affect an ordinary person, not what would specially and exclusively annoy a particular individual. ‘Insult’ means ‘speak or act in a way that hurts or is intended to hurt a person’s feelings or dignity’.
It is sufficient that he has the intention to do so. No overt act is required to complete the offence, though the overt act may sometimes be part of intention. However, every fraudulent act or intention will not constitute criminal trespass.
An intention to commit an offence is sine qua non of the offence of criminal trespass. It is therefore necessary for the prosecution to prove the existence of such an intention on the part of the accused to record his conviction for committing criminal trespass.
Further, it is required to show that such an intention was actual and not just probable. The intention may be inferred from the acts of the accused, if any, expressing his intention or from the attending circumstances. However, in the absence of an intention of annoying or insulting someone or of committing an offence, conviction for criminal trespass becomes impossible.
The second mode of criminal trespass is ‘remaining unlawfully after lawful entry’. The entry of a person into or upon the property is lawful, but his continuing presence there becomes unlawful. Not only should the continuing presence become unlawful, but it should be with the intent to intimidate, insult or annoy any such person or with intent to commit an offence.
If a person enters on land to the possession of another in the exercise of a bona fide claim of right but without any intention to intimidate, insult, or annoy the person in possession, or to commit an offence, then although he may have no right to the land, he cannot be convicted of criminal trespass, because the entry was not made with any such intent as constitute the offence.
When a person enters lawfully and if his remaining is unlawful, but not with the requisite intention to commit an offence or to intimidate, insult or annoy the person in possession, then it will not amount to an offence under Section 441.