Criminology

Fundamentals of Crime, Criminal Law and Criminal

Justice
Criminal Trespass
 Role Name Affiliation

Principal Investigator Prof. (Dr.) Ranbir Vice Chancellor, National

Singh Law University, Delhi

Co-Principal Investigator Prof. (Dr.) G.S. Bajpai Registrar, National Law

University Delhi

Paper Coordinator Dr. Debdatta Das Assistant Professor of Law,

Burdwan University

Content Writer/Author Ms. Sumiti Ahuja Assistant Professor, Amity

Law School, Amity
University

Content Reviewer Dr. Dipa Dube Associate Professor, Rajiv

Gandhi School of Intellectual
Property Law, IIT Kharagpur

DESCRIPTION OF MODULE

Items Description of Module

Subject Name Law

Paper Name Fundamentals of Crime, Criminal Law and

Criminal Justice

Module Criminal Trespass

Name/Title

Module Id 29

Objectives The objective of this module is:

 To inculcate within the readers in-depth

knowledge of law related to criminal trespass
with the help of relevant case laws and
illustrations.

 To explain most basic of concepts required for

better understanding of the module.

 To differentiate between the various

aggravated forms of trespass under the Indian
Penal Code.
Prerequisites General understanding of the fundamental principles
of criminal law; basic knowledge of offences against
property and the general explanations under the
Indian Penal Code, 1860.

Key words Criminal Trespass, House Trespass, Lurking-House

Trespass, House-Breaking, Lurking House-Trespass
by Night, House-Breaking by Night, Intention,
Property, Possession, Receptacle
 Module Title: Criminal Trespass

Synopsis

 Introduction to Offence of Criminal Trespass

 Learning Outcomes
 Offence of Criminal Trespass defined under the Indian Penal Code, 1860
 Aggravated forms of Criminal Trespass punishable under the Indian Penal Code, 1860
 Dishonestly Breaking Upon a Receptacle Containing Property
 Summary

1. Introduction

“The word trespass in common English acceptation means and implies unlawful or
unwarrantable intrusion upon land.”1 Black‟s Law Dictionary defines trespassing as, “An
unlawful act committed against the person or property of another; especially, wrongful entry
on another‟s real property.”2 But that does not mean every „trespass‟ as understood in its
common usage finds place under The Indian Penal Code, 1860, as a punishable offence.

The authors of the Indian Penal Code say: “We have given the name of trespass to every
usurpation, however slight, of dominion over property. We do not propose to make trespass,
as such, an offence, except when it is committed in order to the 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 a
light punishment, unless it be attended with aggravating circumstances.”3 These words point
out the difference between civil trespass (or, trespass to land as a tort) and criminal trespass
(or, trespass to land as an offence). Civil trespass refers to a situation where a person directly
enters upon land of another person without his permission or, remains upon the land or, places
any object upon the land4 whereas, criminal trespass includes trespass committed for purpose
of and with the intention of commission of offence against the possessor of property or for
causing him any kind of annoyance. Criminal trespass focuses on intention of the offender
and not upon the nature of the act.

Sections 441-462 (22 Sections) of the IPC incorporate the offence of criminal trespass and
aggravated forms thereof. The abovementioned Sections are covered under Chapter XVII
titled „Offences against Property‟.5 The object of providing punishment therein is to protect

1
Kewal Chand Mimani v. S.K. Sen, AIR 2001 SC 2569.
2
Bryan A. Garner (ed.), Black‟s Law Dictionary (8 th edn.) available at:
http://www.republicsg.info/Dictionaries/2004_Black's-Law-Dictionary-Edition-8.pdf
3
Thomas Babington Macauley, Speeches and Poems, with the Report and Notes on the Indian Penal
Code 450 (Houghton Osgood and Company, Bostan, 1878) available at:
https://play.google.com/books/reader?printsec=frontcover&output=reader&id=IqdEAAAAYAAJ&pg=
GBS.RA1-PA450 (Last Visited on October 20, 2016).
4
Gokak Patel Volkart Ltd v. Dundayya Gurushiddaiah Hiremath and Ors. (1991) 2 SCC 141.
5
Other examples from the Indian Penal Code, punishing trespass can be seen under Section 297,
dealing with trespass on burial places.
possession of property. A „trespass‟ is an unlawful interference with one‟s person, property or
rights; with reference to property, it is a wrongful invasion of another‟s possession.6

2. Learning Outcomes

After completion of this module, reader will be able to:

3. Offence of Criminal Trespass under the Indian Penal Code, 1860

Section 441 of the IPC defines criminal trespass which is punished under Section 447 of the
Code. The remaining Sections (Ss. 442-446 and 448-462) deal with aggravated forms of
criminal trespass and are backed by stricter sanction in the form of heavier degrees of
punishment as compared to that in case of simple criminal trespass under Section 447.

3.1 Statutory Framework

Section 441 of the IPC, defines criminal trespass as follows:

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”.”

Criminal trespass as given under Section 441 is punishable under Section 447 of the IPC. The
punishment may be simple imprisonment which may extend to three months, or fine of
maximum five hundred rupees, or both.

6
Laxmi Ram Pawar v. Sitabai Balu Dhotre & Anr (2011) 1 SCC 356.
In case of K. Kelappan v. State Of Kerala7, the issue before the Kerala High Court was
regarding the interpretation of Section 47 of the Kerala Police Act, 1960. Contention of the
revision petitioner was that offence under Section 47 of the Kerala Police Act can be there
only if, criminal trespass under Section 441 of the IPC was made out. Section 47 of the Act
read as: “Penalty for wilful trespass. Whoever without reasonable excuse willfully enters into
or on any dwelling-house or other building or on any land or ground attached thereto or on
any boat, vehicle or vessel, or on any ground belonging to the Government or appropriated to
public purposes, shall be liable on conviction to imprisonment for a term not exceeding six
months or to fine not exceeding five hundred rupees or to both.”8

The High Court held that the contention of the petitioner was untenable as Section 47 merely
punished an entry without reasonable excuse and no criminal intention was required to
constitute an offence therein. It was further held that there was not need to prove that such
entry under Section 47 of the Act was with intention to commit an offence, or to intimidate,
insult or annoy any person in possession. The Court held that both the offences as laid down
under the IPC and Kerala Police Act were independent of each other. In Kelappan’s case9, the
petitioner alongwith three others were found in the verandah of Government High School at
unusual hours and were not able to reasonably explain their reason behind being present there
to the police party.

State Amendments to section 441, IPC: Amendments to this section were introduced by
States of Orissa and Uttar Pradesh in the year 1986 and 1961 respectively. These amendments
inserted were to punish the act of those people, „who having entered into or upon such
property, with the intention of taking unauthorized possession or making unauthorized use of
such property failed to withdraw from such property or its possession or use, when called
upon to do so by that another person by notice in writing, duly served upon him.‟10

3.2 Essentials to determine liability under Criminal Trespass

The essential ingredients of the Section are:

7
1990 Cri LJ 697
8
Section 47 of the Kerala Police Act, 1960 (Act 5 of 1961).
9
Supra note 7.
10
These amendments were introduced vide Orissa Act 22 of 1986 Section 2 (w.e.f. 6-12-1986) and
Uttar Pradesh Act 31 of 1961, Section 2 (w.e.f. 13-11-1961).
A trespass becomes a criminal trespass if it is with an intention to annoy or to do something
illegal.11 In Noorul Hooda’s case12 the officer who was heading the Police (SOS: Special
Operations Squad) team gave the orders to his team to break open the doors of Suleman
Bakery wherein the miscreants were hiding. The police team had been entrusted with the job
of controlling riots after reaching the spot as certain wireless messages had been received
about rioting miscreants. In the process, some policemen opened fire injuring many and
killing few inmates. The Supreme Court held, firstly, the accused who was leader of the team
and had given orders to break open the place did not do anything illegal as it was his duty to
quell the riots and control the rioters as he had justifiable reasons for doing so; secondly, the
SOS team who was obeying their superior‟s orders was not any unlawful assembly with the
common object of killing the inmates after entering the bakery. The act therefore, did not
amount to criminal trespass, as the intention was not to do anything illegal or unlawful.

In case of Isaac Isanga Musumba and Others v. State of Maharashtra and Others13, the
complainants had alleged in their FIR that the petitioners (accused) who were Ugandan
Nationals had illegally entered into their company‟s office and demanded 20 million dollars,
mentioning that they had international arrest warrants against complainants, and on failure to
pay the due sum of money, the latter will have to face the dire consequences. One of the
material (undisputed) facts was presence of business transaction between petitioners and
complainants. The Hon‟ble Supreme Court held that, as the accused persons had visited the
premises of the complainants to make a demand towards their dues, no case of criminal
trespass as defined under Section 441, IPC, was made out.

Offence of criminal trespass under IPC is akin to the offence of forcible entry in English
Law.14 However, the Indian Law is very different from the English Law. Forcible entry is
defined as “the crime of taking possession of a house or other structure, or land by the use of

11
Noorul Huda Maqbool Ahmed v. Ram Deo Tyagi (2011) 7 SCC 95.
12
Ibid.
13
(2014) 15 SCC 357
14
V Suresh and D Nagasaila (eds.), PSA Pillai’s Criminal Law 844 (LexisNexis Butterworths, New
Delhi, 9th edn.).
physical force or serious threats against the occupants. This can include breaking windows,
doors, or using terror to gain entry, as well as forcing the occupants out by threat or violence
after having come in peacefully.”15 Under the Indian Law of criminal trespass, force is not
necessary ingredient of the offence.16

3.2.1 Entry into or upon property in the possession of another

„Whoever enters‟ denotes actual personal entry upon property by the accused. It should be
unauthorized, against the will or without the consent of person in possession.

Possession: Possession alone is relevant, for the purposes of deciding whether criminal
trespass has been committed or not; object of provision is to protect possession and not
ownership.17 The term possession is not defined under the IPC, but it is one of the most
important aspects of the offence of trespass. Salmond describes possession, „as a relationship
between a person and a thing…the test for determining whether a person is in possession of
anything is whether he is in general control of it‟.18 A person can be said to be in possession
through his wife, servant, agent or other person (example: tenant). Now, consider two
situations:

Situation 1: „X‟ (a third person) enters upon a property which is in possession of

tenant, with intent to commit an offence or to intimidate, insult or annoy that tenant.

Here, „X‟ is guilty of offence of criminal trespass and complaint against the same is
valid enough even if it is made by the landlord instead of tenant.

Situation 2: „X‟ (the landlord) enters upon a property which is in possession of tenant,
with intent to commit an offence or to intimidate, insult or annoy that tenant.

Here, again „X‟, the landlord will be guilty of criminal trespass against his tenant,
because as mentioned above trespass is offence against possession and not ownership.

In reference to the words „in possession of another‟ as used in Section 441, the possession has
to be actual possession of some person other than the alleged trespasser. Mere constructive
possession hasn‟t been held to be sufficient. It was highlighted in case of Satish Chandra
Modak v. The King19, that the intent specified under Section 441, IPC, must not be with
respect to any and every person connected with the property, rather with respect to person in
actual possession of such property. Person in constructive possession isn‟t contemplated by
Section 441.

In State of Rajasthan v. Daulat Singh20, the charge on the accused was related to entering
upon the land of another and destroying crops, further it was observed that there was a dispute
between both the parties as to possession. The court therefore held, that entry into the dispute
land could not be said to be a criminal trespass. Similarly, persons who merely have
easementary rights over certain property cannot be said to be in possession thereof.21

15
http://legal-dictionary.thefreedictionary.com/forcible+entry
16
See Batakala Pottiavadu ILR 26 Mad 29, available at:
https://archive.org/stream/handbookcrimina00desagoog/handbookcrimina00desagoog_djvu.txt (Last
Visited on October 15, 2016).
17
See S. Gurdial Singh and Ors. v. Abhey Dass, AIR 1967 P&H 244.
18
Supdt. And Remembrancer Legal Affairs West Bengal v. Anil Kumar Bhunja, AIR 1980 SC 52.
19
AIR 1949 Cal 107.
20
2001 Cr LJ 3464 (Raj.)
21
Soram Parijat Singh v. Thongram Meri Singh, AIR 1960 Manipur 17.
It isn‟t essential that person who is in possession of property should be present in the property
when trespass takes place. In other words, presence of trespasser is necessary, but presence of
person whose possession is being trespassed is not mandatory. In Veerathaiah and Anr. v.
Ramaswamy Iyengar22, the Karnataka High Court observed that, “…to say that there could be
no criminal trespass upon the property in the lawful possession of another unless the person in
possession is actually present at the time of the entry would be to narrow down the plain
meaning of the words used in that Section”.23

Property: The words preceding the term „property‟ under Section 441, IPC, are entry „into‟
or „upon‟. It is clear from the usage of the latter words that the Section does not apply to
incorporeal property like right of fishery, right of easement, right of ferry etc. It applies to
corporeal property or property which according to this Section is capable of being entered
upon or entered into. The question arises now is whether this Section extends its application
to both movable and immovable property. The answer to this is that the term property as used
under Section 441 is wide enough to include both forms of property-movable or immovable
as both can be entered into as well as entered upon. Thus, there can be a criminal trespass into
a car, boat etc.24

3.2.2 Intention

As stated in the beginning of this module as well, major point of difference between civil
trespass and criminal trespass is of intention. Under Section 441, the main aim or object or
dominant intention of the entry should be either to commit an offence25, or to intimidate,
insult or annoy the person in possession of the property. Actual commission of offence etc. is
not necessary, it‟s sufficient if he has intention to do so.

The intention mentioned under Section 441, IPC, is of two types:

22
AIR 1964 Kant 11.
23
Also see Rash Behari Chatterjee v. Fagu Shaw, AIR 1970 SC 20; wherein the court observed, the
law does not require that the intention must be to annoy a person who is actually present at the time of
trespass.
24
See Dhanonjoy v. Provat Chandra Biswas, AIR 1934 Cal 480.
25
For the purpose of Section 441, the term „offence‟ as defined under Section 40 of the IPC, means and
includes: (i) a thing made punishable by this code (IPC) or, (ii) the thing punishable under the special
or local law with imprisonment for a term of six months or upwards, whether with or without fine.
Intention is sine qua non and has to be gathered from the facts and circumstances of a given
case. In State v. Bhanwaria26, the accused respondent entered upon the house of one Jetia, on
the invitation of his wife to have illicit sexual intercourse with her. The High Court held
Bhanwaria to be criminally liable for trespass as he had entered the premises with the
intention of committing offence of adultery.

In Rajinder and Others v. State of Haryana27, the Supreme Court held that the complainant
party cannot be said to have committed the offence of criminal trespass, although they had
made unauthorized entry into the disputed land which was in possession of accused party, as
the entry was only to persuade the latter to withdraw thereupon and not with any intention to
commit an offence, or to intimidate, insult or annoy them.

In the famous Olga Tellis case28, the Supreme Court has observed: “There is no doubt that the
petitioners are using pavements and other public properties for an unauthorized purpose. But,
their intention or object in doing so is not to commit an offence or intimidate, insult or annoy
any person, which is the gist of the offence of „Criminal Trespass‟ under Section 441 of the
Penal Code. They manage to find a habitat in places which are mostly filthy or marshy, out of
sheer helplessness. It is not as if they have a free choice to exercise as to whether to commit
an encroachment and if so, where.”

In Baldewa v. Emperor29, it was observed that mere knowledge or likelihood is not sufficient.
It was further observed that “the mere entry does not render the accompanying trespass a
criminal trespass. It should be noticed that the legislature has used the words „with intent‟ and
not the words „with knowledge‟.”30 Similarly, the Supreme Court has observed that
“knowledge and intention are two different aspects, the difference of which has to be borne in
mind in deciding whether a particular act was covered by Section 441 or not.”31 In Punjab v.
AIPNBE Federation32, the employees of the bank went on strike in support of certain
demands made by them. The employees of the bank entered the bank premises, sat in their
places but refused to pursue their work. They refused to vacate their seats when asked by
superior officers to do so. The contention of the management was that if the employees had
decided not to work, they were not entitled to have license to enter the premises and hence
their acts amounted to trespass. The Supreme Court rejecting their contention held that, even
assuming that the employees‟ entry was unlawful, it was not correct to say, the said entry was
made with intention to annoy the superior officers. The court further held, even if striking
employees be denoted knowledge that their strike can annoy superior officers, such
knowledge cannot necessarily lead to inference of intention.

In Mathri v. State of Punjab33, the accused alongwith others armed with warrants for delivery
of possession in execution of several decrees entered upon the property in possession of
another. At the time of entry, the warrants had ceased to be executable in law. The Supreme
Court held that the accused and others had entered the property only with the intention of
executing warrants and not at all under influence of intention to commit an offence or to
intimidate, insult or annoy any person. Court went ahead to say that „a lay person could not be
expected to know that a warrant had become inexecutable in law.‟ It was held that since the

26
AIR 1965 Raj 191.
27
(1995) 5 SCC 187.
28
AIR 1986 SC 180.
29
AIR 1933 All 816.
30
Also See S. Vullappa And Ors. v. S. Bheema Row (1917) 33 MLJ 729.
31
Punjab National Bank Ltd. v. All India Punjab National Bank Employees’ Federation, AIR 1960 SC
160.
32
Ibid.
33
AIR 1964 SC 986.
requisite intention contemplated under relevant Section was absent, therefore, the act did not
constitute offence of criminal trespass.34

“intent…..to intimidate, insult or annoy any person in possession of such property”

Oxford Dictionary defines Intimidate as „to frighten or overawe someone, especially in order
to make them do what one wants‟.35

Example: A enters B‟s premises against latter‟s will and manhandles him so that he can take
back his litigation initiated against A. Here, A will be held liable for criminal trespass because
he entered the premises unlawfully with intention of intimidating B.

„Criminal intimidation‟ is in itself an offence under the IPC; it includes instances wherein,
“Whoever threatens another with any injury to his person, reputation or property, or to the
person or reputation of any one in whom that person is interested, with intent to cause alarm
to that person, or to cause that person to do any act which he is not legally bound to do, or to
omit to do any act which that person is legally entitled to do, as the means of avoiding the
execution of such threat, commits criminal intimidation.”36

Insult is to speak to or treat with disrespect or scornful abuse.37 Gross abuse offered to
another, either by word or act; an act or speech of insolence or contempt; an affront; an
indignity.38

Example: A organizes a party at his home. B is also present at the party. B picks up a quarrel
with A and is therefore asked by A to leave the premises. B refuses to leave and keeps on
hurling filthy abuses at A in front of everyone present. B here will be liable for criminal
trespass if even though his entry being lawful, his stay there became unlawful the moment he
was asked to leave the premises but he chose to stay there with intention of insulting A in
front of others.

To annoy is to disturb or irritate, especially by continued or repeated acts; to tease; to ruffle in

mind; to vex.39

Example: The question that arose for consideration in case of Rash Behari Chatterjee v. Fagu
Shaw and Others40 was whether the intention of the respondents was to annoy the appellant
within the meaning of Section 441 of the Indian Penal Code? The facts of the case were that
the appellant had obtained physical possession of land in dispute in pursuance of a decree
against the respondent. It was almost after 12 years of litigation that the appellant was able to
obtain possession. After three weeks of appellant having obtained possession, the respondent
trespassed upon the land and started making preparations for construction of bamboo

34
Also See Kanwal Sood v. Nawal Kishore And Another, AIR 1983 SC 159. In this case, the Supreme
Court observed that, an entry under a license or tenancy and continuing to be there after the expiry of
the term does not in itself constitute an offence. It is at most a matter of civil nature and eviction should
be affected through civil proceedings. The Madras High Court in case of Dharmaraj v. Thillainathan
(1977) Mad LJ (Cr.) 300, has observed that the plea of bona fide claim can only arise where the
trespass is not of an aggravated kind and is supported at least by a plausible show of title, or by such
circumstances, as would justify an inference that the intention of the accused was not to commit an
offence etc., but merely to vindicate what they conceived to be their legal right.
35
See https://en.oxforddictionaries.com/definition/intimidate
36
Section 503 of the Indian Penal Code, 1860 (Act No. 45 of 1860).
37
See https://en.oxforddictionaries.com/definition/insult
38
See https://www.merriam-webster.com/dictionary/insult
39
See http://alpha.totodefinition.com/search.php?word=annoy
40
Supra note 23.
structures on the same. The court held that there was no doubt that the intention of respondent
was to annoy the appellant and the same was the dominant intention at the time of the entry.

3.2.3 If such entry is lawful then unlawfully remaining upon such property

It is immaterial whether criminal intention accompanies or succeeds the entry. The second
part of Section 441, IPC, refers to a situation where the entry of a person „into or upon‟
property is lawful, but thereafter his continuing presence becomes unlawful. The point to be
highlighted is, not only should the continuing stay become unlawful, but it should be with the
intent to intimidate, insult or annoy any person in possession or with intent to commit any
offence.41 The offence is of continuing nature within the meaning of Section 472 of the
Criminal Procedure Code, 1973.42 Offence would be continuing so long as the trespass is not
lifted or vacated and intimidation, insult or annoyance of the person legally in possession of
the property is not stopped.43

Example: A enters B‟s shop for purpose of purchasing something; he realizes afterwards that
he is short of cash. He thereafter decides to lift that object from the shop without paying price
for it. In doing so, he gets caught. Here, although the initial intention was clear and lawful to
buy something but later on that say became unlawful when he developed intention to commit
theft and tried to do so.

4. Aggravated forms of Criminal Trespass under the IPC

Trespass may be aggravated by the way in which it is committed or, by the end for which it is
committed.44 The various factors like, time of trespass, purpose behind trespass, nature of
trespassed property (e.g., dwelling house) etc. aggravate the magnitude of the offence which
results in higher penalties.

41
State of Maharashtra v. Tanba Sadashio Kunbi, AIR 1964 Bom 82.
42
Section 472 of the Criminal Procedure Code, 1973, states that: “In the case of a continuing offence, a
fresh period of limitation shall begin to run at every moment of the time during which the offence
continues.”
43
Supra note 4.
44
W. Morgan and A.G. Macpherson, Indian Penal Code (Act XLV of 1860) With Notes 400 (G.C. Hay
& Co., Calcutta, 1863) available at:
https://play.google.com/books/reader?printsec=frontcover&output=reader&id=jOJeAAAAcAAJ&pg=
GBS.PA400 (Last Visited on October 20, 2016).
4.1 House Trespass (Section 442 read with Section 448)

House trespass is an aggravated form of criminal trespass for the reason of nature of property
trespassed. Section 442, IPC, defines house trespass as:

442. House-trespass.— “Whoever commits criminal trespass by entering into or remaining

in any building, tent or vessel used as a human dwelling or any building used as a place for
worship, or as a place for the custody of property, is said to commit house-trespass.
Explanation: The introduction of any part of the criminal trespasser‟s body is entering
sufficient to constitute house-trespass.”

House trespass has been defined in terms of criminal trespass, so all the essentials of the latter
are to be proved along with the place where trespassing is done, in order to hold a person
guilty of house trespass under Section 448, IPC. The three types of such places as given under
Section 442 are:

1. Building,45 tent or vessel46 used as human dwelling.

2. Building used as a place for worship.
3. Building used as a place for custody of property.
The relation between Sections 441 and 442, IPC, is such as that of Sections 378 and 380, IPC.
Section 378 defines theft and Section 380 provides for punishment in case of theft being
committed in any building tent or vessel being used as human dwelling or for custody of
property. Likewise, Section 441 defines criminal trespass and Section 442 provides for an
aggravated version in form of house trespass where the criminal trespass takes place in any
building, tent or vessel used as human dwelling or, any building used as place for worship or

45
In Moir v. Williams (1892) 1 QB 264, the court was of the opinion that “what is a „building‟ must
always be a question of degree and circumstances; its ordinary and usual meaning is an enclosure of
brick or stone work covered in by a roof”.
46
Vessel is defined under Section 48, IPC, as denoting anything made for the conveyance (by water) of
human beings or of property.
for custody of property. Section 448, IPC, provides for punishment for the offence of trespass,
i.e. „imprisonment of either description for a term which may extend to one year, or fine
which may extend to one thousand rupees, or both.‟

The question in case of State of Karnataka v. Richard47 was whether police station can be
included under the term „building‟ as used under Section 442, IPC? It was held that criminal
trespass in question need not only be in respect of a building used a human dwelling, but it
also covers building used as a place for custody of property and as police station is a place
where there will also be custody of property, it will also come under definition of „building‟
in Section 442.

In Balwinder Singh v. State of Punjab48, the accused had entered into a man‟s house without
arms but pelted him with brickbats thereafter, of which one fell upon the chest causing death,
the accused was held to have committed the offence of house trespass and punished under
Section 448.

In Vidyadharan v. State Of Kerala49, the Supreme Court has reiterated that „to sustain the
conviction under Section 448, IPC, it must be found that the intention of the accused was to
commit an offence or to intimidate, insult or annoy the complainant. There must be an
unlawful entry and also there must be proof of one or other of the intentions mentioned under
Section 441, IPC.‟ The facts of this case were that a woman was alone at her home and
cooking in the kitchen, the accused entered her house and got inside the kitchen and held her
hand. She resisted and in panic ran towards the front room and tried to close the door; the
accused reached there and forcibly opened the door and thereafter grasped her. After she
made a hue and cry, the accused ran away. The Supreme Court upheld the decision of Trial
Court and High Court, and found him guilty under Sections 354 and 448, IPC.

In Kirpal Singh & Anr v. Wazir Singh & Others50, the Delhi High Court held that even if the
accused persons‟ entry into the shop was lawful (as they were the employees of the
complainant) the accused persons retained it unlawfully (stopped him from entering his own
shop after he came back from his visit to his daughter‟s place in another State; accused
persons told him he was not related to this shop anymore) and dishonestly for a period of
more than 37 years. They were clearly guilty of committing continuing trespass for all these
years which is punishable under Section 448, IPC (as shop comes under the category of
building used for custody of property).

The Explanation to Section 442, IPC, states as to what amounts to entry (or, entry when
complete) to constitute an offence of house-trespass.

4.1.1 Aggravated forms of House Trespass (Ss. 449-452)

Sections 449-452, IPC, lay down the aggravated forms of house-trespass. Sections 449-451,
IPC, provide for aggravated version of house trespass to be determined by the gravity of the
offence for which house trespass is committed. Section 452, IPC, provides for higher
punishment by reason of making preparation for causing hurt, etc. or fear of it.

47
2008 Cri LJ 2200 (Kar).
48
1989 Cri LJ 718 (P&H).
49
(2004) 1 SCC 215.
50
2001 Cri LJ 1566 (Del).
Section 449, IPC: In Matiullah Sheikh v. State of West Bengal51, it was held that it is
immaterial whether or not the purpose of the offence for which the house trespass has been
committed has been accomplished or not. The facts of the case were that the accused and
others had entered the house of complainant to kill him, one attacked him with the dagger and
others held him so that he couldn‟t escape. The complainant raised an alarm and caught hold
of one of the accused. The injuries on the body of complainant did not prove to be fatal and
he survived. The contention of the appellants was that Section 449 cannot be levied against
them as the offence contemplated was not accomplished. The Supreme Court held them liable
for house trespass under Section 449, because the section uses the words „in order to‟ which
means „for the purpose of‟ commission of an offence not for the completion of offence.

Section 450, IPC: In case of Surjit Singh v. State of Punjab52, the appellants along with other
co-accused committed criminal trespass into the house of deceased Harbans Kaur for the
purpose of raping her. The attempt seemed to be unsuccessful because the sons of deceased
had started shouting for help. Surjit Singh (one of the accused) alleged that if she stays alive
she will implicate them all and therefore Harbans Kaur should be killed; on listening this, his
co-accused gave a brickbat blow on her head, after which she died. The accused were held
guilty under Section 450, IPC, along with other charges levied against them.

Section 451, IPC: In State of Kerala v. Kurissum Moottil Antony53, the case related to house
trespass for the purpose of committing unnatural offence (Sections 451 and 377, IPC). The
accused finding the victim (10 years old girl at the time of occurrence) alone at home entered
her house and committed carnal intercourse against the order of nature.

51
AIR 1965 SC 132.
52
(2007) 15 SCC 391.
53
(2007) 1 SCC 627.
The case of Alistair v. State54, related to Sections 451 and 381 read with 120-B, IPC. The
appellants had unlawfully trespassed into workshop of their employer company and had taken
away three radioactive resources.

Section 452, IPC: „Preparation‟ is the genesis of offence under Section 452, IPC.

In Moreshwar v. State of Maharashtra and Another55, the appellant accused was charged
under Sections 354 and 452, IPC, for allegedly committing trespass in the premises where the
complainant was living as a tenant with her husband. The accused had trespassed for the
purpose of seeking sexual favours from the complainant. The accused had filed application
for compounding of the offences under Section 320, the Criminal Procedure Code, 1973. The
offence under Section 354, IPC (outraging modesty of woman) is compoundable but that
under Section 452 is not. The counsel for the appellant contended that from reading of the
complaint and the charge framed, offence under Section 452 is not made out as trespass was
not done for putting complainant in fear of hurt, assault or wrongful restraint. The Supreme
Court agreeing with the contentions of the appellant‟s counsel held that the offence of house
trespass was made under Section 451 (compoundable offence) and not Section 452.

In cases of State of Maharashtra v. Tulshiram Bhanudas Kamble56 and Thoti Manohar v.

State of A.P.57, the accused persons had come armed with lethal weapons when they entered
the premises and had attacked the deceased.

4.2 Lurking House Trespass

Difference between house-trespass and lurking house-trespass is that the latter is a more
intensified version of former in as much as in lurking house-trespass, the trespasser takes
some active precautions to hide his identity from the person who has a right to prevent that
person from entering within the premises or who has a right to throw him out upon entry.
Such a right can probably be exercised by the owner or joint owner and also by those who are
interested in possession.

In simple words, lurking house trespass is a house trespass committed in a surreptitious or

secretive manner.

It is mandatory on part of prosecution to prove that the accused took some active means to
conceal his presence, or, he took precautions in order to conceal such trespass.

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”.”

Punishment for committing offence of lurking house trespass is given under Section 453, IPC,
as imprisonment for a term which may extend to two years along with fine. Hiding in corner
of porch can be taken as one of the examples of lurking house-trespass definition.

54
(2009) 17 SCC 794.
55
(2005) 11 SCC 429.
56
(2007) 14 SCC 627.
57
(2012) 7 SCC 723.
The flow chart above shows that lurking house trespass is form of house trespass which in
turn is form of criminal trespass. Therefore, the intention necessary to constitute criminal
trespass is necessary to be shown in case of lurking house trespass too.

4.2.1 Lurking House Trespass by Night

House trespass may again be aggravated by the time during which it is committed. As the
name suggests, Section 444, IPC, defines lurking house trespass committed during night time.
It is more serious an offence in comparison to lurking house trespass committed during day.

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”.”

As underlined in the definition above, the term night means or covers period „after sunset and
before sunrise‟. The mere fact that house trespass is committed during night time does not
make the offence of lurking house trespass by night.58 In Prem Bahadur Rai’s case59, the
Sikkim High Court observed: “The law is well-settled that unless the accused is alleged to
have taken some active steps and means to conceal his presence, the allegation that a house-
trespass was committed during night and the darkness helped the accused in concealing his
presence, does not and cannot justify the framing of a charge for the offence of committing of
lurking house-trespass.” In Birendra Chandra De and Ors. v. The State60, the appellant
accused Birendra (Assistant Sub-Inspector of the thana) alongwith other accused Sultan Khan
had entered the office of the thana in the darkness of the night and in an unearthly hour and
committed theft of the money belonging to Sootea Sub-Post Office which was kept in safe in
custody of Sootea Thana. Birendra being the ASI though had lawfully entered the premises of
the thana but unlawfully remained there and committed theft of Post Office property. The
Gauhati High Court observed that “getting into, the office in the darkness of the night in an

58
Prem Bahadur Rai v. State of Sikkim, 1978 Cri LJ 945.
59
Ibid.
60
1957 Cri LJ 1231; AIR 1957 Assam 168.
unearthly hour with or without the door closed will surely amount to „lurking house-trespass‟
in case the criminal trespass was there.”

The offence of lurking house trespass during night has been punished under Section 456, IPC,
with imprisonment for a term which may extend to three years and fine. The maximum
punishment given under this section is one year more than that given under Section 453, IPC,
which is for lurking house trespass when committed during day.

4.3 House-Breaking

House breaking is a house trespass committed in a violent manner. Section 445, IPC, defines
house-breaking with punishment incorporated under Section 453, IPC. The offences of
lurking house-trespass and house breaking are punished under same section, i.e., with same
punishment, because both are grave forms of house trespass depending on the way in which
trespass is committed. Where, lurking house trespass is house trespass committed in a
secretive manner, house breaking refers to house trespass committed in a more aggressive
manner.

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 in such six ways.”

As underlined in the definition above, the offence of house breaking can be of two types:

1. House trespass effected by an entry in any of the six ways specified in the section, or,
2. Leaving the house or, making an exit in any of the six ways after being there for
purpose of committing an offence or, after committing an offence there.
Six ways of entry or exit as described under Section 445 (with examples) are as follows:

S.No. WAYS OF ENTRY/EXIT ILLUSTRATIONS

1. If he enters or quits through a passage made by A commits house-trespass by making a
himself, or by any abettor of the house-trespass, hole through the wall of Z’s house, and
in order to the committing of the house-trespass. putting his hand through the aperture.
[Illustration (a) to Section 445, IPC]
2. If he enters or quits through any passage not A commits house-trespass by entering Z’s
intended by any person, other than himself or an house through a window. [Illustration (c)
abettor of the offence, for human entrance; or to Section 445, IPC]
through any passage to which he has obtained
access by scaling or climbing over any wall or
building.
3. If he enters or quits through any passage which he A commits house-trespass by entering Z’s
or any abettor of the house-trespass has opened, house through the door, having lifted a
in order to the committing of the house-trespass latch by putting a wire through a hole in
by any means by which that passage was not the door. [Illustration (e) to Section 445,
intended by the occupier of the house to be IPC]
opened.
4. If he enters or quits by opening any lock in order A finds the key of Z’s house door, which Z
to the committing of the house-trespass, or in had lost, and commits house trespass by
order to the quitting of the house after a house- entering Z’s house, having opened the
trespass. door with that key. [Illustration (f) to
Section 445, IPC]
5. If he effects his entrance or departure by using Z is standing in his doorway. A forces a
criminal force or committing an assault, or by passage by knocking Z down, and commits
threatening any person with assault. house-trespass by entering the house.
[Illustration (g) to Section 445, IPC]

Z, the door-keeper of Y, is standing in Y’s

6. If he enters or quits by any passage which he
knows to have been fastened against such
entrance or departure, and to have been
unfastened by himself or by an abettor of the
house-trespass.
doorway. A commits house-trespass by
entering the house, having deterred Z
from opposing him by threatening to beat
him. [Illustration (h) to Section 445, IPC]
A commits house-trespass by entering Z’s
house through the door, having opened a
door which was fastened. [Illustration (d)
to Section 445, IPC]

In the six ways mentioned above, the first three ways deal with entry which is affected by
means of a passage which is not ordinary, the remaining three deal with entry which is
affected by force.

Explanation to Section 445 provides that “any out-house or building occupied with a house,
and between which and such house there is an immediate internal communication, is part of
the house within the meaning of this section.”
4.3.1 House-Breaking by Night

Invasion of a person‟s residence especially during night is a serious offence and should
naturally be meted out with deterrent punishment.

446. House-breaking by night---“Whoever commits house-breaking after sunset and before

sunrise is said to commit “house-breaking by night”.”

The offence of house-breaking by night has been punished under Section 456, IPC, with
imprisonment for a term which may extend to three years and fine. In all the cases of house-
breaking by night, there must be house-trespass and in all house-trespass there must be
criminal trespass, committed during night.

4.4 Aggravated forms of Lurking House-Trespass and House Breaking (Ss. 454, 455, 459)

Further, the aggravated forms of lurking house-trespass and house-breaking (not committed
during „night‟) are given under Sections 454-455 and 459, IPC.
Section 454, IPC: It corresponds to Section 451, IPC. The relation between Section 451 and
this section is same as that between 442 and 443 or, 442 and 445. While this section, deals
with lurking house-trespass or house-breaking by day, Section 457, deals with those offences
when committed by night.

Lurking house-trespass or house-breaking, if intended to commit the offence of theft, is made

more severely punishable.

In Ratna @ Ratan Lal And Another v. State of Rajasthan61, some unknown persons had
committed theft at the house of complainant by breaking open the lock and some pieces of
silver and gold jewelry were stolen. The value of jewelry and cash stolen from the house was
calculated to be Rs. 64,000. The trial court held the appellants Ratna and Uda guilty under
Sections 454 and 380, IPC, and the punishment given was 3 years and 7 years rigorous
imprisonment respectively and fine. The Supreme Court although upholding the conviction,
reduced the sentence to 1 year and 18 months imprisonment under Sections 454 and 380
respectively, due to the long duration of the case.

Section 455, IPC: It corresponds to Section 452, IPC. The relation between Section 452 and
this section is same as that between 442 and 443 or, 442 and 445.

In Chonampara Chellappan v. State of Kerala62, the accused appellants armed with various
weapons had entered inside the police wireless station after breaking open windows and doors
and assaulted the inmates. The Court held that they must be deemed to have shared the
common object of committing lurking house trespass and were therefore made liable for
conviction under Section 455 read with Section 149, IPC.

Section 459, IPC: It can be said to be aggravated form of Section 453, IPC. The latter
punishes simple lurking house trespass or, house breaking.

For offence under this section, the accused must cause, or attempt to cause grievous hurt, or
attempt to cause death to any person. This causing of grievous hurt, or the attempt to cause
death or grievous hurt, must be done in course of commission of offence (as clear by the
usage of word „whilst‟ under the section) of lurking house-trespass or house-breaking and at
the time when such lurking house-trespass or house-breaking is being committed. Section is
not applicable where grievous hurt is caused after the offence has been committed. A person,
who has completed forcible entry into a house, should not be deemed by reason of violence
subsequently used, to have used violence while house-breaking and therefore, the offence
under Section 459 would not be committed.63

4.5 Aggravated forms of Lurking House-Trespass by Night and House Breaking by Night (Ss.
457, 458, 460)

Further, the aggravated forms of lurking house-trespass and house-breaking (committed

during „night‟) are given under Sections 457-458 and 460, IPC.

61
Decided by the Supreme Court dated 14/11/2014.
62
AIR 1979 SC 3761.
63
S.K. Sarkaria (ed.), RA Nelson‟s Indian Penal Code 4536 (LexisNexis Butterworths, New Delhi,
Vol. 4, 10th edn., 2008).
Section 457, IPC: House-Breaking by night with the purpose of abducting a woman, being
an offence punishable with imprisonment will be covered under this section.64 In Nasiruddin
and Others v. State of Assam65, the appellants came to the house of Samsheruddin during
night armed with deadly weapons, and broke open the door of the house in order to abduct his
wife, Jahura Bibi. The trial court, High Court and the Supreme Court held the appellants
guilty under Section 457, IPC, for committing house-breaking by night for the purpose of
commission of an offence punishable with imprisonment (in this case it was abduction).

The entry of one person into the house of another will not be presumed criminal at all unless,
there are circumstances from which an inference of criminality can be drawn.

Section 458, IPC: This section is similar to Sections 452 and 455, IPC and applies to
aggravated form of these offences.

Section 460, IPC: This section incorporates the principle of constructive liability. It
prescribes penalty for joint offenders who commit, or who are concerned in lurking house-
trespass by night or house-breaking by night, in the course of which death or grievous hurt is
caused or is attempted to be caused.

64
Nasiruddin and Others v. State of Assam, AIR 1971 SC 1254
65
Ibid.
The Supreme Court on requirement to establish common intention for applicability of this
section has observed that, “to establish an offence under Section 460 of the Code, it may not
be necessary for the prosecution to establish common intention or object. Suffice it will be to
establish that they acted jointly and committed the offence stated in Section 460. The
principle of constructive liability is applicable in distinction to contributory liability” 66.

The offence, to which this section is applicable, is limited to the time during which the
criminal trespass continues, it can‟t be extended in order to include any offence either
committed prior to or subsequent to the commission of house-breaking by night or, lurking
house-trespass by night.67 In Sed Rasul v. Emperor68, the accused (armed with deadly
weapon) had broken into the house of Thakur Singh in order to commit theft. After an alarm
was raised, the accused persons tried to flee away from the scene but in the courtyard they
ended up stabbing Ram Singh, who had tried to seize them. Ram Singh got injured and later
on succumbed to his injuries. It was held that as the stabbing was done after the house-
breaking was complete, therefore, Section 460, IPC, did not apply and the accused were held
to be guilty under Sections 456, 458 and 326, IPC.

Section 460, IPC, not being an exception to Section 302, if a person committing house
breaking by night also actually commits murder, he must attract the penalty for the latter
offence under Section 302, IPC.69

5. Dishonestly Breaking Upon a Receptacle Containing Property

Sections 461 and 462, IPC, deal with the offence of opening, or unfastening, of any closed
receptacle or any container used for storage of property70. Section 462 presents aggravated
form of offence as defined under Section 461. These two sections in contrast to the above
discussed sections (Ss. 441-460), which mostly emphasized on cases of trespass to land,
punishes trespass against stored property of a person or, trespass against preserves of another.

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, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or with both.””

This section deals with the opening of any fastened receptacle either dishonestly (e.g., for
committing theft) or merely for committing mischief. The section makes it an offence, the
mere opening a fastened receptacle independently of the offence of theft or mischief (which
may be committed after the opening). In other words, as soon as the receptacle is broken open
(e.g., by breaking the lock of a safe) or unfastened (e.g., detaching or releasing a chain
fastened to any safe), the offence under this section is complete.

66
Haradhan Das v. State of West Bengal (2012) 12 SCALE 416.
67
Muhammad v. Emperor, AIR 1921 Lah 94.
68
AIR 1917 Lah 319.
69
See Abdul Aziz v. State of Rajasthan (2007) 10 SCC 28
70
The word „receptacle‟ is used to signify any place or vessel which is a repository for something.
Thus, it includes not only any chest, safe or closed box but, also a room such as warehouse or godown
[K.D. Gaur, Textbook on the Indian Penal Code 753 (Universal Law Publishing Co., New Delhi, 4th
edn.)].
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, shall be punished with
imprisonment of either description for a term which may extend to three years, or with fine,
or with both.”

Section 462, IPC, is an aggravated form of Section 461, in as much as it involves an element
of trust, and a person to whom the receptacle is entrusted, is punished more severely if he
opens it without authority and if same is coupled with dishonest intention or intention to
commit mischief. „Entrusted‟ implies voluntarily handing over of custody or management of
the property to someone for some purpose.

6. Summary

The Indian Penal Code, 1860, has dealt with offence of criminal trespass under 22 sections,
beginning from Section 441 to Section 462, IPC. The major difference between trespass as a
tort and as an offence is centered on mens rea in the form of intention. Section 441, defining
criminal trespass makes it clear that there should be an intention, either to commit offence or
to intimidate, insult or annoy a person in possession of such property. Criminal trespass can
be by two ways: unlawfully entering the property or having lawfully entered, unlawfully
remaining there.

Aggravated form of Criminal Trespass is House trespass, reason being the nature of property
where the trespass has occurred. The nature of property mentioned under Section 442 is
building, tent or vessel used for human dwelling, or any building either used as place of
worship or used for custody of property.

Further, house trespass can be aggravated by the way or manner it has taken place, i.e., either
in a surreptitious (secretive) manner or in violent manner. The offence under former head is
named as lurking house-trespass, and that under the latter is named as house-breaking.
Lurking house-trespass or, house-breaking when committed during night time extract more
punishment in comparison to these offences if committed during day time.

Trespass may also result in higher penalties because of the purpose behind trespass, e.g.,
trespass for committing offence punishable with death, trespass in order to commit offence
punishable with imprisonment, trespass after preparation for hurt, assault or wrongful
restraint.

At the end, sections 461 and 462 deal with dishonestly opening or unfastening any receptacle
containing property.