Define criminal trespass and discuss the essential ingredients of this offence

Question: Define criminal trespass and discuss the essential ingredients of this offence.

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Answer

Section 441 of the IPC defines ‘criminal trespass’, while section 447 provides the punishment thereof. They read as under:

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 447 Punishment for criminal trespass.— Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

The object of section 441 (as well as of the succeeding sections) is to protect the possession of the property. The essence of the offence of criminal trespass is entry into the property under the possession of another with the intention to commit an offence.

Section 441 is concerned with the exclusive possession, and not ownership, of the property on which an unauthorised entry was effected into. Section 441 has two limbs. The first limb refers to an entry into a property in the possession of another with the intention to commit an offence or to intimidate, insult or annoy the person in possession and the second to the remaining in possession having lawfully entered into the property with the intention of intimidating, insulting or annoying the person in possession of such property, or with the intention of committing an offence.

Thus, the essence of the offence of criminal trespass lies in an unauthorised entry or unlawful retention of the lawful entry with the 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;
2. if such entry is lawful, then unlawfully remaining upon such property;
3. such entry or unlawful remaining must be with intent–

1. to commit an offence; or
2. to intimidate, insult or annoy the person in possession of the property.

1. Entering the Property

As the section mentioned the terms whoever enters it must be clear as to what kind of entry is required to make a case of criminal trespass. The entry here is meant to be any person entry into or upon the property by the accused but not a constructive one like an entry made by a servant. It is not required that the entry made must be by use of force, it is sufficient if it is unauthorised or against the will of the possessors of that property.

2. What kind of property?

The second essential of this section is a possession of the property must be by another, but what kind of property is covered by the scope of criminal trespass offence is not mentioned in the section. The property here includes movable as well as immovable property. Hence in the case of Dhananjoy v. Provat Chandra Biswas, AIR 1934 Cal 480, a boat was leased out and the accused injured the lessee to take possession of that boat. The court held it to be an offence of criminal trespass. This proves that a property can be of any kind to constitute an offence of criminal trespass.

The scope of property does not include intangible things like rights. Such infringement would not amount to the offence of criminal trespass.

3. Possession of that property

To constitute an offence under this section the property must be possessed by another person and not the trespasser himself. The law intends to protect the interest of the possessors and not the person who are owners. The law does not require the possession to be legal or lawful, all that is required to be proved is that the possession is actual and exclusive.

The complainant may file a case of criminal trespass as possessors of a property even though the trespasser is the owner itself. Further, it is not mandatory for that person to be present at the time of criminal trespass if the entry is made by the accused with the intention as mentioned in the section

4. Mens Rea: Intent of the accused

For conviction under this section, the intent of the accused is essential. As the trespass may not be criminal if the accused do not possess the intention to ‘commit an offence or to intimidate, insult or annoy any person in possession of such property. Thus the objective of the act done by the accused must be driven by his criminal intention.

The prosecution is required to prove this intention of the accused in the court of law, the absence of which, conviction is impossible under this section.

The above intention to intimidate or insult or annoy the person in possession of that property as claimed by the prosecution must be actual. The intention of the accused can be proved by circumstantial evidence in which the accused expresses his interest his intention or by the series of acts undertaken by the accused.

Thus, the essentials when fulfilled is an offence of criminal trespass.

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