1|Page

PANJAB UNIVERSITY REGIONAL CENTRE,

LUDHIANA

INDIAN PENAL CODE, 1860

ASSIGNMENT ON
CRIMINAL TRESPASS

SUBMITTED BY: SURBHI RAJORIA

82/20F
BA LLB 6TH SEMESTER

SUBMITTED TO: ADV. SUNIL MITTAL

2|Page

ACKNOWLEDGEMENT
I am overwhelmed in all humbleness and gratefulness to acknowledge
my depth to all those who have helped me to put these ideas, well
above the level of simplicity and into something concrete.

I would like to express my special thanks of gratitude to my teacher

‘Adv. Sunil Mittal’ who gave me the golden opportunity to do this
wonderful project on the topic ‘Criminal Trespass’, which also
helped me in doing a lot of Research and I came to know about so
many new things. I am really thankful to him.

Any attempt at any level can ‘t be satisfactorily completed without the

support and guidance of my parents and friends.

I would like to thank my parents who helped me a lot in gathering

different information, collecting data and guiding me from time to
time in making this project, despite of their busy schedules, they gave
me different ideas in making this project unique.
3|Page

TABLE OF CONTENTS
SR. NO. TITLE PAGE. NO.
1) INTRODUCTION 4
2) DEFINITIONS 5-6
3) ESSENTIAL INGREDIENTS 7-10
4) AGGRAVATED FORMS 11-19
4.1) HOUSE TRESPASS 11-13
4.2) LURKING HOUSE-TRESPASS 13-15
4.3) LURKING HOUSE-TRESPASS BY 15-16
NIGHT
4.4) HOUSE BREAKING 16-18
4.5) HOUSE BREAKING BY NIGHT 18-19
5) CONCLUSION 20
6) BIBLIOGRAPHY 21
4|Page

INTRODUCTION
Every individual has a right to the full enjoyment of their property
without any disturbance, this is the reason trespass was made an
offence. Even though trespass is ordinarily a civil wrong for which the
defendant can sue for damages, but when such trespass occurs with a
criminal intention it amounts to criminal trespass. If your enjoyment
of your property, whether movable or immovable is disturbed due to
criminal activities of any kind, be it theft or assault, you can seek
remedy under the Indian Penal Code, 1860. Trespass in common
language means to enter another's property without his permission
express or implied or right1. The term ‘trespass' is generally viewed as
a civil wrong and it simply means entry on someone's land or property
without permission. When a Trespass is done with a criminal
intention, it amounts to criminal trespass and is regarded as a
punishable offence under Indian Penal code, 1860. If a person's right
to enjoyment of property, whether movable or immovable is curtailed
due to criminal activities of another person, be it theft or assault, the
IPC offers remedy for such an infringement of right. The subject of
Criminal trespass has been discussed in IPC in 7 sections starting
from sections 441 to 447.

1
Philip Babcock (ed.), Webster's Third New International Dictionary p. 2439. (G. & C. Merriam Co, US, 1976)
5|Page

DEFINTIONS
Black’s Law Dictionary defines ‘Criminal Trespass’ as “A person
who enters on the property of another without any right, lawful
authority or an express or implied invitation or license”. 2 In India, the
Indian Penal Code, 1860 covers the offences and punishments
pertaining to Criminal Trespass.

Section 441 of the Indian Penal Code, 1860 defines Criminal trespass
as:

“Whoever enters into or upon property in 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”.3

Thus Section 441 of the Indian Penal Code, 1860, elucidates that, a
person who enters into the property which is in possession of another
person with an intention to insult, annoy or to commit an offence
against the person or property of the person in possession is said to
have committed the offence of ‘criminal trespass’. In the same
manner, if a person lawfully enters into the property of another but
stays there with

2
Trespass, Black’s Law Dictionary (9th ed., 2009)
3
The Indian Penal Code, 1860,s.441.
6|Page

an intention thereby to commit an offence, insult or intimidate such

person is charged under Section 441 of the IPC for ‘criminal
trespass’.4

Evident from the aforesaid definition, it is prudent to infer that the

offence of criminal trespass is sundered into two parts;

The first being the act of entering into the property in possession of
another person without his consent (express or implied) with a
criminal intent.

The second part refers to that act in which a person enters the property
possessed by another person, albeit the entry is lawful per say, but the
intention to stay on the property is mala fide or criminal.

4
The Indian Penal Code, 1860.
7|Page

ESSENTIAL INGREDIENTS
The essential ingredients of Criminal trespass are:

1. Entry into or upon property in the possession of another;

2. If this entry is lawful, then unlawfully remaining upon such
property;
3. Such entry or unlawful remaining must be with intent-
4. To commit an offence; or
5. to intimidate, insult or annoy the person in possession of
the property.
1)Enters into or upon property in the possession of
another:
In this section, the word ‘property’ constitutes a moveable as well
as immovable and corporeal property, into or upon which, one is
capable of entering. One may be convicted not only of walking
onto the land belonging to someone else, but also if he gets into a
car or boat belonging to someone else5. The possession of such
property is also considered to be of paramount importance. Under
this section both – the actual as well as constructive facets or
concept of possession of property are embraced.6 When possession
exists in law but not in fact, it is termed as constructive possession.
What is to be noted is that ownership is not in the question here,
just the possession of the property at the time of offence is

5
Dhanonjoy v. Provat Chandra Biswas, AIR 1934 Cal 480.
6
Sant And Anr. vs The Union Of India (UOI), AIR 1962 HP, 1961.
8|Page

material. In Dakamarri Kannayya v. Vadali Venkatesam7, what

was alleged to be a trespass was done on a piece of vacant site
with the complainant devoid of its actual possession.
In cases covering entry in or upon the property of another person
with intent to cause annoyance or commit an offence, the presence
or absence of the person against such intention is held
irrelevant.8What is not included within the ambit of property under
the section is the incorporeal property, property which cannot be
touched, such as right to collect tolls. Also the states are
empowered to consider certain acts that fall within criminal
trespassing laws, such as hunting on someone else’s land, however
a proper notice needs to be provided.

2) Intent to commit an offence:

Criminal trespass depends on the intention and not upon the nature
of the act. If, for instance, a person with intent to save his family
and property from imminent destruction commits criminal trespass
on his neighbour's land, and cuts a portion of dam belonging to his
neighbour; he is not guilty of criminal trespass. It is legitimate to
think also that when section 441 of the Penal Code, speaks of
entering on property with intent to commit an offence, or to
intimidate, insult or annoy any person in possession of the
property

7
42 Ind Cas 897.
8
Subhana v. The State, 1954 CriLJ 413.
9|Page

it speaks of the main intention in the action and not any subsidiary
intention that may also be present.9
The accused, the Vice Chairman of a school committee, entered the
school premises which were under the possession and control of
the Head Master and actually beat two boys and abused the Head
Master. He also threatened the Head Master of physical harm as
soon as he came out of the school. It was held that the accused has
committed criminal trespass.10 A passes through the compound of
B in spite of the notice board "trespassers will be prosecuted”. Here
A would be guilty of trespass if his mere passing over the land
causes annoyance to B and in this case annoyance was very likely
in view of the notice prohibiting trespass.

3)Having lawfully entered into or upon such

property, unlawfully remains there:
The original entry of a person may be lawful on the premises of
another but if he remains on the property with the intent specified
in the section, he commits trespass.
In Kanwal Sood v. Naval Kishore,11 the Supreme Court observed
that if remaining unlawfully after lawful entry lay a person is not
intended 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 of IPC.

9
Smt. Mathri v. State of Punjab, AIR 1964 SC 986.
10
State of Maharashtra V. Tanba Sadashio Kunbi, AIR 1964 Bom. 82.
11
(1983) Cr LJ 173 (SC)
10 | P a g e

In Olga Tellis v. Municipal Corporation, Bombay,12

some pavement dwellers faced the problem of demolition of huts
by the Municipal Corporation, which they had illegally
constructed on public footpaths and pavements. The Supreme
Court held that they were not guilty of committing the criminal
trespass as they lacked the requisite intention. The Court held that
the act of pavement dwellers was not voluntary but it was an
expression of their helplessness and struggle for survival.
In Sevani Transport Ltd. v. Kamraju Bisoi,13 the accused who
was a branch Manager of a company took company's flat on rent
but he did not vacate it even after his transfer to some other place
despite several notices by the company. He was held guilty of
criminal trespass under Section 441 of IPC.

12
(1985) 3 SCC 545.
13
1991 Cr Lj 1073 (Ori.)
11 | P a g e

AGGRAVATED FORMS
Occasions, magnitude and penalties of criminal trespass may vary
from offence to offence. Criminal trespass may be considered as
aggravated considering the time & purpose of trespass and nature of
the property trespassed. Such cases are dealt under specific Sections
of the Indian Penal Code with specific punishment prescribed.

1) House Trespass:
Section 442 defines house-trespass in the following manner:
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-
When a person as whole or a part of his body enters into or remains
within any building, tent or vessel used by another person as a
dwelling, place of worship or as a place of custody of the property,
he is said to have commited house trespass. It is not compulsory for
a place of human developing to be a permanent residence of the
defendant. Temporary residences such as school or railway
platforms also count as a human dwelling. What constitutes a
building shall depend upon what is ordinarily understood by the
term. Hence to consider a particular structure as a building or place
of dwelling within the ambit of Sec 442 of the IPC, facts, evidence
12 | P a g e

& material of the case are to be analysed.14 It must have a

semblance of dwelling, mere fence cannot amount to human
dwelling.
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 for custody of property.15

Punishment-
If the defendant is guilty of house-trespass, Section 448 of the
Indian Penal Code provides for such a person an imprisonment
for a term not exceeding 1 year or a fine which may extend up to
INR 1,000 or both.

Essential Ingredients of House Trespass-

The essential ingredients of house-trespass are that:
(a) the accused committed criminal-trespass that he trespassed by
unlawfully entering into or;

14
Dal Chand v. The State,1966, Cr LJ 236.
15
Fundamentals of Crime, Criminal Law and Criminal Justice
13 | P a g e

(b) by remaining on the property unlawfully after initial lawful

entry;
(c) that such trespass was in respect of a building, tent or
vessel; and
(d) that such building, tent or vessel was used as a human
dwelling or as a place of worship or as a place for storing
property.16
House-trespass is an aggravated form of criminal-trespass, which
has been defined under Section 441 of the IPC and which is
punishable under Section 447 of the IPC. It is, therefore, obvious
that before a person is held to be guilty of an offence punishable
under Section 452 of the IPC, it must be shown that in the alleged
trespass, all the elements of ‘criminal-trespass' or ‘house-trespass'
were present.
2) Lurking House- trespass:
Lurking house-trespass is an aggravated form of the house-
trespass. When an offence of house trespass is committed with
precautions to conceal such offence from the person who possesses
the right to eject such trespasser from the building or such
dwelling place which is the subject of trespass, it is dealt under
Section 443 of the IPC as lurking house-trespass. However, it
must be eminent that the accused trespasser has taken active steps
to conceal his presence.17 Also such steps to conceal the house-
trespass have to be taken before committing the house trespass &
as such if a

16
Md. Salauddin & Anr v. The State of West Bengal & Another, (2015) 153 AIC 447.
17
Prem Bahadur Rai v. State Of Sikkim,1978 CriLJ 945
14 | P a g e

person makes an effort to hide himself after committing house

trespass on seeing the resident of the house, it is wrong to presume
that such precaution has been taken beforehand and as such does
not attract lurking house trespass.18 The same was reiterated by the
High Court of Delhi in the case of Tilak Raj v. State (NCT) of
Delhi.19 So an active means taken by the trespasser is the essence
of the lurking house-trespass in addition to other elements of the
general house trespass.
In Lokesh Kumar v. State (NCT of Delhi) And Another20,
setting aside the contention of complainant according to which the
accused lurking house trespasser was seen jumping from the
balcony and running away while the door of the balcony was open
despite being closed by the complainant himself, the court
observed that the prosecution in such cases does not only has to
establish house-trespass but has also to prove that the accused has
taken precautions to conceal such house-trespass from some
person who has a right to exclude or reject the trespasser.
Since no such evidence of precaution to conceal such house-
trespass was put forward, the offence of lurking house trespass was
not made by the court.

Punishment- Section 453 of the IPC, 1860 punishes a person who

is guilty of lurking house-trespass with imprisonment of either

18
Buddha v. Emperor, (1916) 3 AIR Lahore 425.
19
ILR (2010) 5 Del 28 Ibid.
20
19. CR.REV.P. 831/2016.
15 | P a g e

description which shall not exceed 2 years and shall also be liable
to fine.
3) Lurking house-trespass by night:
Section 444 of the IPC states that Whoever commits lurking
house-trespass after sunset and before sunrise, is said to commit
lurking house-trespass by night.
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.21
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.
In order to constitute lurking house-trespass, the offender must take
some active means to conceal his presence. If mere trespass
committed by night does not constitute lurking house-trespass even
if the darkness helps the accused to conceal his presence.
Concealment of the accused on account of darkness does not
convert the house-trespass into lurking house trespass.
In Buddha v. Emperor22, the Lahore High Court held that in order
to constitute lurking house-trespass, the offender must take some
active means to conceal his presence. The precaution to conceal
house-trespass has to be taken before committing house-trespass. If

21
Prem Bahadur Rai v. State of Sikkim, 1978 Cri LJ 945.
22
(1916) 3 AIR Lahore 425
16 | P a g e

a person, after committing house-trespass, tries to hide himself on

seeing the occupant of the house, it cannot be said that he had,
before committing house-trespass, taken any precaution to conceal
his act from the owner or occupier of the house in which trespass is
committed by him.23
4) House-breaking:
Section 445: House-trespass would become house-breaking if the
trespasser effects his entrance into the house or any part of it 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 the following ways:
 If such house trespasser quits through or enters via a passage
by himself, or by an abettor of the house trespass, so as to
commit such house-trespass.
 If the house trespasser enters or quits via any passage which
is not intended by any person as an entrance for humans,
other than the house trespasser himself or an abettor of the
offence; or if he enters through such a passage to which
access has been gained by scaling or climbing over any
wall or building.
 If the house-trespasser enters or quits by means a passage
which has been opened by him or any abettor of the house-
trespass so as to commit house-trespass by any means by

23
Tilak Raj v. State (N.C.T) of Delhi, ILR (2010) 5 Del 28
17 | P a g e

which such passage was not intended by the occupier of the

house to be opened.
 If in order to commit house-trespass or after committing
house-trespass, the said trespasser enters or quits by opening
any lock.
 If he enters or quits by using criminal force or committing
an assault or by threatening any person with assault.

 If the said house trespasser enters or quits through such a

passage the fastening of which he is aware has been done
against such entrance or departure and has unfastened it
by
himself or by an abettor of the said house-trespasser.

EXPLANATION- 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.

As such, breaking open of a cattle-shed which serves as storage

for agricultural implements would amount to house-breaking.24
Further entering the house using a window, by making a hole in
the wall or by assaulting the doorkeeper, the accused will be
guilty of house-breaking.

PUNISHMENT- Apart from the offence of lurking house

trespass section 453 of the IPC also provides the punishment for

24
Re: Pullabhotla Chinniah case, 39 Ind Cas 309 a.
18 | P a g e

housebreaking. A person who is guilty of house breaking shall

be punished with imprisonment of either description which may
extend upto 2 years and shall also be liable to pay fine.

5) 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 housebreaking by night,
there must be house-trespass and in all house-trespass there must
be criminal trespass, committed during night. If the purpose in
committing the house trespass is the commission of an offence
punishable with death the house trespass becomes punishable
under s. 449 of the Indian Penal Code.
If the purpose in committing the house trespass is the commission
of an offence punishable with imprisonment for life the house
trespass is punishable under s. 450 of the Indian Penal Code.
Similarly, ss. 451, 454 and 457 will apply if the house trespass or
lurking house trespass, or lurking house trespass by night or house
breaking by night are committed for the purpose of the offence
indicated in those sections. Whether or not the purpose was
actually accomplished is quite irrelevant in these cases.25
Section 460 incorporates the concept of Constructive liability.
Under Section 460 IPC, constructive liability is imposed on
persons jointly concerned in committing lurking house trespass or

25
Matiullah Sheikh v. The State Of West Bengal, 1965 AIR 132, 1964 SCR (6) 978
19 | P a g e

house breaking by night, in the course of which death or grievous

hurt is caused. The section applies to persons who actually
committed house trespass at night and the act of causing death or
grievous hurt by any one of the intruders would make others, who
did not cause the injury, equally liable.26

26
Abdul Aziz V. State Of Rajasthan, (2007) 10 SCC 283
20 | P a g e

CONCLUSION
Apart from development, better lifestyle, economic prosperity, a safe
& secure atmosphere is an important underpinning to the modern
civilized world. The notion of a safe atmosphere to live in is what the
human race has yearned for since the beginning. As such,the
sovereign of a state is bound to take action to consider the safety of
its subjects of paramount importance and take every step to provide
such measures. This is apparent in criminalizing even the most trivial
of the offences (as considered by many states) such as trespass.

Be it a complete stranger or a person you are acquainted with,

whoever enters your property with a criminal intent, shall be
prosecuted for criminal trespass under IPC. A keen eye needs to be
kept over the intention of such a trespasser, for evil intent and not
mere knowledge of it is what makes such a crime. Further, criminal
trespass is of various degrees depending upon the property
trespassed, measures taken during such trespass & timing of the
trespass. With the degree of aggravation changing from one to
another, punishment also keeps on changing from one form of
criminal trespass to another, with housebreaking by night attracting
the most severe of the punishments.
21 | P a g e

BIBLIOGRAPHY

 BOOKS REFERRED:

 S.N. Mishra, Indian Penal Code, 1860, Central Law

Publication Company, 2018.

 K.N. Chandrashekhar, Pillai, Essays on Indian Penal Code, 1860,

1860, Universal Law Publication, 2019.

 T. Bhattacharya, The Indian Penal Code, 1860, Central

Law Agency, 2017.

 ARTICLES REFERRED:

 Fundamentals of Crime, Criminal Law and Criminal Justice.

 WEBSITES REFERRED:

 https://www.lawyersclubindia.com/

 https://www.legalserviceindia.com/

 https://www.writinglaw.com/