Author : V. Krishna Laasya, School of Excellence in Law
Black’s Law Dictionary refers to criminal trespass as when a person enters another’s property without any inherent right, authority or an explicit, implicit invitation.
Trespass can generally be classified into Trespass to a person, to chattels and to land.
According to conformation with the Indian Law Provisions, criminal trespass is ordinarily a civil wrong where the damage is settled by compensation. However, if committed with a criminal intention, then it is considered a criminal offence and is punishable by application of principles of Indian Penal Code, 1860. The main point of difference is the concept of ‘intention’. The unlawful presence of the person is not enough to describe the commission of criminal trespass. It must be followed by ill intention on the part of the person entering another person’s property.
Provisions of the Indian Penal Code
S. 441 of the Indian Penal Code, 1860 deals with criminal trespass and refers to it as whoever enters property which is in possession of another person with a clear intention to commit an offence and to insult, irritate or intimidate the other person, is said to have committed the offence of criminal trespass.
It is noteworthy that criminal trespass does not only include unlawful entrance but also includes lawful entry but remaining there with an intention to intimidate or annoy the other person.
Thus, criminal trespass is twofold: unlawful entry with a criminal intention to annoy the other person without the presence of any explicit or implicit invitation and lawful entry but remaining there in the property of another person.
Use of brutal or explicit force is not as essential feature to constitute the crime of trespass.
The usage of words ‘entry’ and ‘upon’ in the definition of trespass under S. 441 are clearly stand alone and do not apply to property including right of easement, right of fishery etc. thus, the right embodies tangible property like real estate, buildings etc. It must also be noted that the section includes and can be made applicable to both movable and immovable property as entered into and entered upon.
In reference to the term possession under the section, the aspects of both actual possession and constructive possession can be covered. Trespass can be considered as an intention to annoy the owner of the property, irrespective of whether the owner is present or not at the time of trespass.
Essential Ingredients for Commission of Criminal Trespass
- The person must enter into the property owned by another.
- The entry should be unlawful. If it is considered lawful, then remaining on the property should be unlawful.
- The unlawful entry must be made with an intention to either commit an offence or to intimidate, insult or the person who owns or is in possession of the property.
Showcasing Relevance of Intention
If intention is not shown as evidence, then the offence of Criminal Trespass cannot be established. The intention can be proved from the facts and circumstances and there is no written law on the exact procedure to be followed to establish the presence of intention.
Mathuri and Ors v. State of Punjab, In this landmark judgement, it was considered essential to establish that the intimidation caused was the aim of the entry and not enough to show that the natural effect of the entry was intimidation and insult. The court was to ascertain all relevant factors to conclude the natural effects and consequences of such a trespass.
Noorul Huda Maqbool Ahmed v. Ram Deo Tyagi and Ors, justifiable conditions for entry and trespass into the property is considered acceptable and it is not to be classified as trespass. Intention was considered absent in the given case and so, the Court held that it is not a case of criminal trespass.
Isaac Isanga Musumba and Others v. State of Maharashtra, it was held by the Court that a business transaction between the two parties and entry of a party to make a demand for obtaining the dues is not a case of criminal trespass and cannot be classified so.
Punishment prescribed under the Indian Penal Code
S. 447 prescribed the punishment in case of the offence of Criminal Trespass. It states that if anyone commits such offence, the imprisonment awarded for a period of maximum three months and/or fine of Rs. 500.
Trespass includes willful entry into another person’s property and the aspect of differentiation between civil trespass and criminal trespass is the intention. Severity of the penalty and imprisonment imposed will also depend on the gravity of the offence of trespass committed. Civil trespass is essentially a civil wrong and is considered a tort. Criminal trespass is an offence and it is specifically dealt with under the Indian Penal Code.
House- trespass as an integral part of criminal trespass must be highlighted as to be held guilty of the offence of trespass, the elements of criminal and house trespass must be reasonably proved. Though, by the nature, offence of house trespass does not include forceful entry or exit, if the passage through which such an entry or exit is made is not intended as generally used, then the offence is house- breaking and intention is still considered a salient feature.
 Black’s Law Dictionary Reference, KV Mageshwara Singh v. State of Tamil Nadu W.P No. 26124 of 2015.
 For reference to the legal implications of Criminal Trespass, see < https://lawtimesjournal.in/criminal-trespass/#_ftn1>. Last accessed July 31, 2020
 Property laid down and references made to the embodiment of the Section see < http://www.legalserviceindia.com/legal/article-2219-criminal-trespass-and-house-breaking-as-under-indian-penal-code.html>. Last accessed July 31, 2020
 Aspects of Possession discussed with link to trespass under Sant and Anr v. Union of India AIR 1962 HP 1
 Mathuri and Ors v. State of Punjab AIR 1963 SC 986
 Noorul Huda Maqbool Ahmed v. Ram Deo Tyagi and Ors 2011 7 SCC 95
 Isaac Isanga Musumba and Others v. State of Maharashtra (2014) 15 SCC 357