What is criminal trespass? Whether the offence of criminal trespass can be committed with respect to a movable property? Explain with example. [MPCJ 2014]

Ans. Criminal Trespass:- The definition of ‘Criminal trespass’ in Black’s Law Dictionary is stated as “A person who enters on the property of another without any right, lawful authority or an express or implied invitation or license”. All around the globe, trespass against the property has been recognized as a civil wrong. However, a lot of countries, including India have made it a criminal offence too. In India, following ingredients of the offence of criminal trespass have been laid down under section 441 of IPC-

  1. There must be an unauthorised entry into or upon another’s property against the will of such person in possession. It is not always necessary that aggrieved persons must be in actual physical possession of property. Over the years, a new trend has emerged to widen the scope of protection against property. The Hon’ble Himachal Pradesh High court has held in Sant vs The Union of India AIR 1962 HP 1 that the concept of possession embraces both actual and constructive possession or legal possession. It is also settled law that the question of title is not to be raised on a plea of possession as the offence is against possession and not against ownership of property. Due to such attributes, even a landlord shall be guilty of the offence of trespass if he forcibly enters the property in possession of tenant and dispossess him after the expiry of the lease.
  2. Alternatively, if initial entry was lawfully obtained then unlawfully remaining therein.
  3. And such entry or unlawful stay must be with an intention: Unlike civil trespass, for criminal trespass Just the unlawful presence of a person on someone else’s property is not enough. There has to be an intentional presence coupled with following specific objectives-
    • To commit an offence. Section 40 of the IPC defines as to when an offence is made out.
    • Or, To intimidate, insult or annoy the person in possession of the property.

Applicability to movable property:- The section 441 of IPC uses the general term ‘property’ without any qualification. Sec. 22 of the act also gives inclusive definition of the word ‘movable property’. The Hon’ble Apex Court has laid down a test in its judgment R. K. Dalmia vs Delhi Administration, AIR 1962 SC 1821 that the word ‘property’ in a particular section covers all types of property which can be the subject matter of the offence contemplated in concerned section. Undoubtedly, a criminal trespass can be committed with respect to even movable property. One such situation happened in the case of Dhananjoy vs Provat Chandra Biswas, AIR 1934 Cal 480 where hon’ble Kolkata High court expressly held that there could be a criminal trespass within the meaning of Section 441 to a motor car, an aero plane and certainly to a boat. So, the scope of section 441 of IPC is wide enough to cover both movable and immovable property but does not include incorporeal properties such as a right of fishery, right to ferry etc.

Example:-

  • There can be criminal trespass with respect to ‘Water Cinema’.
  • There can be criminal trespass with respect to ‘ ATM cash Van’.

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