Sec. 441 defines Criminal Trespass.
Sec. 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”.
1. The accused must have entered into or upon property in the possession of another.
2. If the wrong-doer’s entry is lawful, however, if he remains there unlawfully upon such property, it becomes criminal trespass and it becomes trespass ab initio
3. The accused in doing criminal trespass must have intention,—
(a) To commit an offence; or
(b) To intimidate; or
(c) To insult; or
(d) To annoy any person in possession of the property.
4. Mens rea is an essential ingredient of this offence.
B. Harish Chandra vs. State (AIR 1955 Cal. 1338)
The workers of a factory left their working place. They entered into the office of the Managing Director with deadly weapons. They raised the slogans and beat the staff. The’ High Court held that the accused/workers were guilty of the offence criminal trespass.
C. Punishment for Criminal Trespass:
Section 447 imposes punishment for criminal trespass whoever commits criminal trespass shall be punished with imprisonment of either for a description which may extend to three months or with fine which may extend to five hundred rupees or with both. Nature of offence: The offence under this Section is cognizable, bailable, compoundable, and triable by any Magistrate.
The framers of the Code explained the object of incorporating the provisions making criminal trespass as an offence as follows: “We have given the name of trespass to every usurpation, however, slight domain 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 is attended with aggravated circumstances.”
E. In Tarlochan Singh vs. State of Haryana (1994 280 P&H) case, the Punjab & Haryana High Court held that snatching of keys and replacing of locks prima facie amounts to offence of criminal trespass.
F. Bagiradh Singh vs. State (1992 CrLJ 3934 Raj.)
The complainant was a Munsif Magistrate. He occupied one room in P.W.D. Dak Bungalow. The in charge officer of that dak bungalow, was a senior officer in P.W.D. Department. When the complainant went out for work, the accused/P.W.D. Officer removed the Magistrate’s luggage from that room and changed it into another room. The Court held that it was not a criminal trespass.
G. The Sections in Chapter XVII pertaining to Criminal Trespass designed to protect the possession. Possession is distinguished from title. If the trespasser has a bona fide claim of right, he cannot be considered as an offender.
However the mere assertion of a claim of right is not sufficient defence to a charge of criminal trespass. It must be a good defence. It must be a claim in which the person must have himself believed that it cannot be legally untenable.
H. Distinction between Civil trespass and Criminal Trespass:
There is a clear distinction between civil and criminal trespass. Intent to commit an offence or to intimidate or insult or annoy any person in possession of property is found in criminal trespass. These are absent in civil trespass.