To constitute an offence of criminal trespass as defined in the first part of Section 441,1.P.C., the following essential ingredients must be satisfied: (1) Entry into or upon property in the possession of another, (2) Such entry should be with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property.
The word ‘possession’ as used in S. 441, I.P.C., is wide enough to include not only actual and physical possession but also constructive possession. There is nothing in the second part of S. 441 to cut down or restrict the wider connotation of the word ‘possession’ in the first part of the section. Hence in order to constitute criminal trespass it is not absolutely necessary that the person in possession must be in actual and physical possess-on.
A trespass with intent to cause annoyance to the owner may conceivably be made even though the owner is not present at the time of the trespass. The cause of annoyance is the violation of the rights of ownership and not the presence or absence of the owner at the time of trespass.
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ADVERTISEMENTS:
The degree of annoyance may be more in case of trespass in the presence of the owner but it is not correct that no annoyance is caused if the owner is not present at the time of trespass. Sant v. The Union of India, A.I.R. 1962 Himachal Pradesh, 1],
Problem:
A lost his watch. He suspected that his minor son S has taken it. S further told on interrogation that he (S) has given it to H. S further told and has put the watch in a box in the second story of his house. A with the intention of getting back his watch goes to the house of H and searches H’s box. H objects to A’s entry into his house and search of the box. He feels insulted and annoyed by the entry and search by A.
ADVERTISEMENTS:
Is a guilty of criminal trespass? Give reasons.
A is guilty of criminal trespass. In Premen’s case, 11 Lah. 238, it has been held that where a person claiming title to property enters without any legal jurisdiction upon property in possession of another, he must be inferred to have had an intention to annoy, even though his only object may be to obtain possession for himself.
It is true that A’s primary intention was to get back his watch and not to annoy H, but this is no legal justification for A for taking law into his own hands, when he could have taken the help of the police to recover the watch from H’s box.