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Section 441 of Indian Penal Code, 1860 – Explained!

January 31, 2019 0 Comment

The section requires that the offender must enter into or upon property which belongs to another. His intention for doing so must be either to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, after having lawfully entered into or upon such property he remains there with the intention thereby to intimidate, insult or annoy any person in possession of such property.

It is important to note that in the first part of the section the offender has the requisite intention when he enters into or upon another’s property, whereas in the latter part of it he has already got entry lawfully but remains there with the requisite intention. Thus intention at the time of entry or thereafter is material for determining liability for this offence.

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In other words, entry into or upon another’s property without the requisite intention is not criminal trespass under the first part and remaining into or upon the property of another without the requisite intention after having entered lawfully, is not criminal trespass.

The statement that every unauthorised entry is not criminal trespass is, therefore, absolutely true as far as the Indian Penal Code is concerned. The use of the word ‘property’ shows that this offence can be committed with respect to both immovable and movable property. Thus criminal trespass with respect to a movable property like a boat, for instance, is perfectly possible.

It has been held that since the offence of criminal trespass is not against ownership but is against possession, the question of title could not be raised on a plea of possession. If a joint owner of a property is deprived of his possession he has a right to take recourse to a civil action but cannot take law into his own hands to recover possession, and if he does so he would be guilty of this offence.

Without an ouster from possession or destruction or damage etc. of a joint property prosecution of a co-owner by another co-owner for criminal trespass does not lie. Where a joint owner of a land enters into or upon it with the requisite guilty mind, he could be held guilty of committing this offence.

Owner himself can be guilty of criminal trespass of his own property

In Kishore Jain v. State of Delhi, the premises of the petitioner were sealed by the officer of Municipal Corporation in exercise of power envisaged under section 345-A, Delhi Municipal Corporation Act, 1957. After sealing the de facto control over the property stood transferred to the municipal corporation.

The petitioner made unauthorised construction in the premises after breaking the seal put upon that by the corporation without seeking order of removal of seal. The Delhi High Court held him guilty under section 441 of the Code even though he himself was the owner of the property.

Since the offence of criminal trespass is dependent on the intention of the offender, where the accused trespassed into the land of his neighbour and cut an embankment, which he would not normally have done, to save his property from being destroyed, it could be a case of civil trespass only.

Where the accused, a vice-chairman of a school, committee, went into the school premises which was in the possession and control of the head master and beat two students and also abused and wanted to beat the head master, he was guilty of criminal trespass. Where the government acquired some land but did not demarcate the same and the occupier was not dispossessed, the occupier could not be held guilty of committing criminal trespass if he continued to remain in that property.

Where the accused has asserted his legal right to possess a disputed property and produced such document also which showed that there was some right in him unless he was evicted by the court, it was held that he could not be held guilty of criminal trespass as he was acting bona fide and thus had no requisite intention.

But where the accused persons entered into a land in possession of the complainant and caused damage to the cultivation there, this act could never be believed to be bona fide as argued by them because no one causes damage to his own property ordinarily, and thus they had committed criminal trespass. Constructing a house believing that the land on which it was constructed belonged to the Gaon Sabha negatives liability for the offence of criminal trespass as the necessary intent is absent. In such cases the dispute is of civil nature.

Employees of a bank went on a pen-down strike by taking their respective seats but refusing to work. When their officers asked them to vacate their seats they refused to do so. The strike was peaceful and limited to the normal duty hours. It was held that the requisite intention being absent, there could be no liability for criminal trespass.

Where the accused has claimed right from the beginning that he was the owner of a nursery school and the charitable dispensary run in the portion of a church premises in order to serve humanity, he could not commit this offence as he did not possess the requisite intention.

An advocate surreptitiously entering into the house of a magistrate, in whose court he had appeared in a case, and finding that case file on the table there inspected the same, would be guilty of this offence. A student writing love letter to an innocent stranger girl and then going to her house to deliver the same would be guilty of this offence as the intention to annoy is clearly visible.

An owner who enters his own land which is permissively occupied by another does not commit this offence as he does not have the requisite intention. Similarly, where a house collapses as a result of which the tenant who had been in possession of the same leaves it and goes away, and the owner takes possession of the vacant site, there can be no criminal trespass on his part.

Sexual intrigues

Where the accused entered in the house of the complainant at midnight in his absence to have sexual intercourse with the complainant’s wife, and thus commit the offence of adultery, it was held that he was guilty of criminal trespass as his intention was to commit an offence even though he did not intend to insult, intimidate or annoy anyone.

But where the accused entered in the house of the complainant at night with a view to carry on an intrigue with the unmarried grown up daughter of the complainant, this offence was held to be not committed because of the absence of the requisite intention. Similarly, entering a premises with the intention of having illicit sexual intercourse with a widow would also not make the accused guilty of committing criminal trespass.

The U.P. Amendment

Section 441 has been amended in U.P. by the U.P. Act 31 of 1961, and it has been substituted by the following:

“441. Criminal trespass

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, or, having entered into or upon such property, whether before or after the coming into force of the Criminal Laws (U.P. Amendment) Act, 1961, with the intention of taking unauthorised possession or making unauthorised use of such property fails 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, by the date specified in the notice, is said to commit ‘criminal trespass’.”

Since the amended section in U.P. provides for a civil trespass changing into a criminal trespass on the service of notice to the trespasser, no one could be convicted of it in the absence of such a notice. Where such notice did not specifically provide the date by which the accused was required to vacate a land, his continued possession of the same would not attract liability for this offence.

Where the complainant alleged that the accused, his own brother and partner in his business, had continued to occupy a shop belonging to the complainant even after the dissolution of the partnership, while the accused said that the shop was in their possession since the times of his father and that there was never any partnership between the two, it was held that the accused had not committed criminal trespass and the dispute between the two could be resolved by a civil court.

Where certain pavement dwellers faced the prospects of demolition of huts which they had illegally constructed on public footpaths and pavements, the Supreme Court held that they were not guilty of committing criminal trespass as they lacked the requisite intention and their act was an instance of helplessness and right to survive.

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