venkat (Autosaved)

8/8/2019 venkat (Autosaved)

1/42

Dr. Prasant Kumar Swain

Lecturer

University Law College

Vani Vihar, Bhubaneswar

CERTIFICATE

This to certify that the project work incorporated in this report

CRITICAL ANALYSIS OF LAW OF TRESPASS is a bonafide

project work carried out by D.V.N.Murty a student of 5 years BA.LL.B

(HONS.) course, University Law College, Vani Vihar, Bhubaneswar

under my guidance and supervision.

This work is original and it has not been submitted previously by any

person of the degree of 5years BA. LL.B (HONS.) course.

Date: Signature of the guide


2/42

DECLARATION

I, D.V.N.Murty do hereby declare that this report entitled CRITICAL

ANALYSIS OF LAW OF TRESPASS submitted by me to the

University Law College, Vani vihar, Bhubaneswar is of my own and it

has neither been published nor submitted by any one before.

Date: D.V.N.MURTY

Roll No: 60200UT07038


3/42


4/42

INTRODUCTION

The law of torts is essentially a product of the cases with a few

important statutory interventions, which are of very recent development.

Tort is a developing branch of law. The courts are attempting through anumber of cases to compensate the violation of legal rights of

individuals and laying down new principles of law.

Although no precise definition of tort is provided but summing up all the

definitions, tort can be defined as an act or omission on the part of the

person which violates another persons interest created and protected by

law irrespective of any agreement and understanding between them and

for which remedy is by way of an action for unliquidated damages. Its

main theme is definition of individual rights and duties in conformity

with prevalent standards or reasonable conduct and public good and

convenience.

The cases falling under tort are basically civil in nature. But some cases

coming under tort may well be criminal as well. Such cases are trespass.

Trespass is both civil and criminal wrong. Trespass as a civil wrongincludes trespass to person and trespass to property. Criminal trespass

includes the same but here the degree of wrong is of higher one than that

of civil. In such type of cases the accused will be prosecuted either under

civil law or criminal law basing upon the presence or absence of

mensrea, place of suing and the remedy sought. In this project work an

attempt is made to study Law of trespass in an analytical method.

SCOPE OF STUDY

The topic of the project critical analysis of law of trespass covers a very

large area. In the academic pursuit, this project work is undertaken to

cover the theoretical dimension of law of trespass in relation to person


5/42

and property in civil as well as criminal law. Efforts have also been

made to find out the judicial trend relating to the area.

OBJECTIVE OF THE STUDY

The present study CRITICAL ANALYSIS OF LAW OF TRESPASS

is undertaken for the purposes of the project work in the course

curriculum of 5 yrs. Integrated BA. LL.B (H) course. The title of the

project is self explanatory.

The specific objective of the project is to

1. Make an in-depth study about Law of trespass, the types of

trespass, remedies available under law of torts, Law of trespass

under criminal law, and punishments available thereof.

2. To find out the grounds on which different types of trespass can be

complained by the plaintiff.

3. To find out the judicial trend on the trespass.

4. To finally to draw conclusion of the study.

SELECTION OF AREA

Law of Torts is a vast uncodified arena of law, where students mostly

choose the topics dealing with defenses or any other topic which is

purely civil in nature. But it is seen that many, in violation of legal rights

can be an action under criminal Law as well as under Civil law for torts

and trespass is one of such violation of legal right where there can be a

criminal liability as well as tortuous liability. This has inspired me to

take up the project in this area i.e., critical analysis of Law of trespass, to

analyse trespass from both civil and criminal angle. This analysis of

trespass made in the project gives the idea that how, a person convicted


6/42


7/42

DEVELOPMENT OF PRINCIPAL OF TRESPASS

The principle upon which redress is based in the action of trespass is like

all common law principles for the greater part, the product of historical

development. Most of the tortuous wrongs owe their origin to the writ of

trespass and initially the concept was ibi remedium ubi jus and gradually

by innovative analysis of jurists the concept changed to ibi jus ubi

remedium and the specific nature of wrongs are taken into specific torts

but the whole area remained as law of trespass which effects the personor property of any individual. From the year 1285A.D onward, the

history of trespass is an open book in this sense that the decisions are

available to anyone who chose to go through the decision. From that

date the judges administered relief in cases of trespass as a necessary

corollary, as if they had inherited from their forbearers certain views or

principles. Thus there developed the law of trespass in precedents

without any theory. This is more universally true of trespass than of anyother form of action because of its wider significance, and because it

occupies probably two-thirds of the attention of modern court. It needs

no proof to demonstrate that economic and social factors are the

controlling factors in the evolution of trespass and not judicial or

philosophical fiat. For example, some years ago a person riding upon the

front platform of a street car was not considered to be the agent of his

own injury if hurt by misadventure. But suddenly the eyes of the

community are awakened to the possibilities of electricity a motive

power, and all street cars are now operated by electricity. Straightway

the law of trespass responds and to jurisprudence is added a new

principle, namely, that one who stands on the platform of an electric car,

when he could have gone inside, has assumed a certain risk, and, if


8/42

injured, must shoulder the responsibility himself. As this process of

adding principle to principle through some fourteen centuries continued,

there piled up enormous mass of decisions, which resulted in the law of

trespass. Due to expansion of the concept of right, new things are alsotaken into the gamut of trespass.

MEANING OF TRESPASS

The term trespass has been used by lawyers and layman in three senses

of varying degrees of generality.

1) In its widest and original signification it includes any wrongful act-

any infringement or transgression of the rule of right. This use is

common in the Authorized Version of the Bible, and was

presumably familiar when that version was first published. But it

never obtained recognition in the technical language of the law, but

Prof. Milsom has contended that had there been a medieval

Salmond or Winfield trespass would have been the title, not of a

chapter, but of a book, and is now archaic even in popular speech.

2) In the second and narrower signification- its true legal sense- the

term means any legal wrong for which appropriate remedy was a

writ of trespass such as any direct and forcible injury to person,

land, or chattels.

3) The third and narrowest meaning of the term is that in which, in

accordance with popular speech, it is limited to one particular kind

of trespass in the second sense; such as the tort of trespass to land.

Under the old practice the remedies for torts were in general two in

number-namely, the action of trespass and that of trespass on the case.


9/42

Trespass- as has been said by Maitland1, as that fertile mother of

actions, was the remedy for all forcible and direct injuries, whether

to person, land, or chattels. Case, on the other hand, provided for all

injuries which were either not forcible or not direct, but merelyconsequential. Now the question arises as to what is forcible and

direct. The term forcible is used in a wide and somewhat unnatural

sense to include any act of physical interference with the person or

property of another. To lay ones finger on another person without

lawful justification is as much a forcible injury in the eye of law as

beating a person with the stick.

WHO ARE TRESPASSERS

In several statutes, e.g. the Theft Act 1968 and the Animal Act 1971,

Parliament has used the common law term trespass as if it had a

clear meaning. This is not so. While it is clear that a trespasser is not a

visitor within the meaning of the Occupiers Liability Act, no

generally accepted judicial definition has emerged, although onewhich has often been cited is one who goes on the land without

invitation of any sort and whose presence is either unknown to the

proprietor, or, if known, is practically objected to.

The word trespasser has an ugly sound, but it covers the wicked

and the innocent. Not only the burglar and the arrogant squatter are

trespassers, but also all torts of comparatively innocent and

respectable persons such as walker in the countryside who unhinderedstrolls across an open field. The courts are therefore beginning to

recognize that the duty of the occupier may vary according to the

nature of trespasser.

1 In his book Forms of Action


10/42


11/42

TRESPASS UNDER CIVIL LAW

Trespass as it is creates an aura around it that any place, person or

property which is touched or entered into without the permission of

the latter is actionable, not only the entry but simply a touch with the

finger of others property or person amounts to trespass.

Thus here we shall deal with three types of trespass namely:

1. Trespass to land

2. Trespass to person

Lets us discuss these in detail.

Trespass to land

Trespass to land is based on the maxim trespass quare clausum

freight. This tort protects the interests of the plaintiff in having his

land free from physical intrusion. Because of this emphasis on

physical interference with physical possession, it follows that it is not

the function of tort to protect the ownership as such. The use of the

action in tort as a means of resolving disputes on title has been

facilitated by the rule that trespass is actionableper se.

In an action for trespass the plaintiff is required to prove the

following things:-

1. That he was in possession of immovable property.

2. That the defendant has disturbed his possession.


12/42

Here we are encountered with two components i.e. possession and

disturbed from possession. Thus before going to know what acts

amount to disturbance of possession we must know what is

possession. According to jurisprudence possession is of two typesnamely:-

1. corporeal; and

2. incorporeal.

Corporeal possession is the possession in some form of continuing

relation between a person and a material object. It is a relation of fact

and not of right. Whereas incorporeal possession is the continuingexercise of a claim to anything else other than the material objects. In

short corporeal possession is possession of object and incorporeal

possession means possession of a right.

Now disturbance of possession can be committed:-

1. By entry: The commonest form of trespass is committed when the

trespass when the defendant enters into the land or building possessed

by the plaintiff. To enter anothers land is a trespass, it is immaterial

whether one is on the land momentarily or stays on it for long except

in fixing damages. To constitute trespass slightest crossing of

boundary is sufficient, e.g. to put ones head through a window or sit

upon a fence. Even he who has right of entry on the land for a specific

purpose commits a trespass if he enters for some other purpose. In

case ofABDUL SUBHAN v/s RAMIAT5it was held that in an action

for trespass by entry the plaintiff need not prove that the defendant

used some force or that he caused some damage to the plaintiff. The

trespass is an actionable wrong and a mere trespass is a rule

actionable.

5AIR 1982 MYSORE 90


13/42

2. By remaining on the land: Even a person who has lawfully

entered upon land of the plaintiff commits a trespass if he remains

there after his right to remain there has been ceased. A person who

remains on anothers land after his license has been revoked, commitsa trespass though his entry was; legal, but the continuing in

possession by a lessee after the expiry of the period of lease will not

be trespass.

3. By placing inanimate things on land: It is also trespass to cause

any physical object to cross the boundary of the land of the plaintiff.

The mere fact of placing a thing on the land in possession of another

is trespass. To cause some foreign object to enter or to come inphysical contact with land of the plaintiff is a trespass. Firing a gun in

soil, placing a ladder, or driving rail into the wall of the plaintiff,

removing the doors and windows are all trespasses.

4. Trespass by entry of cattle: damage by cattle also comes under

the heading of negligence and nuisance and it has been discussed

there too. This being the tort of trespass also it is dealt with here too.

Cattle includes horses, oxen, sheep, swine, asses, goats, fowls, geese,ducks, probably tamed dear also, but not cats and dogs. In England

the owner of the cattle which stays into anothers land has always

been held liable for trespass. In the trespass by cattle no damage need

be proved, nominal damage may be awarded for mere entry. Besides

the damage for entry the defendant may be liable for the special

damage caused by the cattle.

Besides, there are some exceptions which say that everybody entering

upon the property of the other will be guilty of civil trespass. Thus

there are two kinds of persons whose entry is not a trespass:


14/42

1. persons entering by the authority of the party, i.e. owner or the

occupier;

2. persons entering with the authority of law.

1. By authority of the party

A private person may give authority to another person in two ways:

a) by grant

b) by leave of license.

a) By grant- The owner of the property may by some mode of transfer

(sale mortgage or gift) grant right to another person and by the

authority of such grant the grantee may enter without any liability

b) By leave or license: It may be from the occupier or the owner. In

India the law of license has been dealt in the Indian Easements Act.

A license may be express or implied of the owner. For example A

stands by and allows B to pass over his field and cattle to graze on

his land.

2. Person entering under the authority of law:

In the case person can enter under the authority of law, either to

back ones own chattel, re-entry by the owner, entry by the public

servant etc., where an owner has been dispossessed by another may


15/42

re-enter on his land peacefully. His re-entry cannot be challenged as

be punished under section 477, IPC. He may also sue for possession

u/s-9 of Specific Relief Act. A person may enter into or upon the

property in possession of another, without being liable for trespass, totake back the goods when the article has been wrongfully taken and

kept there by the person in possession or where the chattel has been

placed on the land of the defendant by the third person or if the article

has been placed there by the act of God i.e. by flood or storm etc. But

where a person enters on the land by authority of the law for some

purpose but subsequently abuses that authority and does that which he

has no right to do, will be deemed to have entered without authority,

and will be liable as trespass ab initio.

REMEDY FOR TRESPASS

As for every tort or wrong there is remedy so also tort for trespass to

immovable property has also some remedy. Thus remedy for trespass

is of two types:

1. Extra- judicial remedies2. Judicial remedies.

1. Extra- judicial remedies

There are three kinds of extra- judicial remedies-

1. Expulsion of the trespasser

2. Re-entry

3. Distress damage feasant.

1. Expulsion of the trespasser- The owner of a house or a land can use

force in expelling a trespasser. But it must be remembered that the force

used must be reasonable and proportionate. The trespasser must be asked


16/42

and given an opportunity to leave the premises before he is forcefully

driven out.

2. Re-entry- A person dispossessed from his land or building by the

other person is entitled to enter and take possession of his property if hecan do so peacefully.

3. Distress damage feasant- This phrase means detention of things

doing damage. This right can be acquired by the occupier of the land

with respect to cattle or things which trespass on his land and do

damage. In India, people instead of detaining the cattle are sending them

to cattle pound, i.e. a government detention house.

2. Judicial remedies- This includes:-

a) Suit for damages

b) Recovery of possession

c) Declaration of possession

d) Injunction.

a) Suit for damages- There may be a case of trespass where the

defendant may not have dispossessed the plaintiff nor did he cause

physical injury to the property of the plaintiff. This may happen

where the defendant enters into the property of the plaintiff without

legal justification. In some cases, the defendant after entering into

the land of the defendant may also cause some physical injury to

the plaintiff. In such cases, the plaintiff is entitled to the damages

for mere entry and damages for the actual injury caused to the

property.


17/42

b) Recovery of possession- When the defendant commits a trespass

and dispossesses the plaintiff, plaintiff can bring a suit for

possession.

c) Declaration for title- In a case where the defendant duly attemptsto trespass, the plaintiff can file a suit for a declaration that the

property belongs to him.

d) Injunction- If the defendant has been repeatedly interfering with

the possession of the property, the plaintiff can file a suit for

injunction restraining the defendant from interfering with

plaintiffs possession.

TRESPASS TO PERSON

The security to the person of the mankind is the most important

function of the law. In law of crimes punishment is prescribed for

different kinds of injuries but in law of torts damages are awarded to

the aggrieved party.

An injury to person for which action lies in tort may be divided in

three kinds namely: Assault, Battery, False imprisonment.

Assault

According to Dr. Winfield, an assault is an act of the defendant

which causes in the minds of the plaintiff reasonable apprehension of

the infliction of battery on him by the defendant.


18/42

Mere words however insulting may it be, does not constitute assault

rather there must be a violent act causing a fear psychosis in the mind

of the opponent of being harmed. In the case ofR v/s ST. GEORGE6

it was held that it is actionable to point a gun at a man in a threateningmanner, even though to the knowledge of the defendant, but not to

knowledge of the plaintiff, that it is unloaded.

In order to constitute an assault it is also necessary that that a person

so assaulted must, on reasonable grounds believe that the person

assaulting has the ability to apply force so attempted by him.

Case ofStephen v/s Myers7is a good illustration on this point. In this

case the plaintiff was a churchman of the managing committee of the

church. Defendant was sitting at a short distance from the plaintiff.

While the meeting was in process the defendant started to shout and

misbehave upon which a motion was carried by the large majority to

turn him out of the meeting. Upon this defendant advanced towards

the plaintiff with the clenched fist saying that he would turn the

plaintiff out instead of himself being turned out, but he could not

fulfill his intention as he was stopped by the other members. On beingsued by the plaintiff defendant took the plea that he was at a distance

from the plaintiff to cause any successful assault. But the court found

that the defendant was advancing with an intention to strike the

plaintiff and if he had not been stopped by others he would have been

successful in his intention. The court holding the defendant liable for

assault on plaintiff awarded him one shilling as damage.

Other than tort assault has also been recognized as crime under section

351 of the Indian Penal Code.

Battery

6 (1840) 9 C.&P.7 (1830) 4 C.&P. 349


19/42

According to Salmond battery is the application of force to the person

of another without lawful justification.

Battery is an accomplished assault. The attempt to strike with stick is

an assault, but to strike actually is battery. The application of even theslightest amount of force is actionable. Battery need not be

accomplished by bodily harm. Even to touch a person without his

permission or any other legal justification is battery.

In an action for battery the plaintiff has to prove the following things:-

1. Use of force

2. Force must be intentional

3. Without lawful justification.

The first element which one has to prove in an action for battery is the

use of force to the person of another, i.e. slapping or pushing. It may be

done by bringing an object into contact with him like throwing stone on

him or setting a dog upon him, without lawful justification. There is no

battery unless there is an act by the defendant. In using a force for battery it not necessary that it is intended. Further degree of force

applied is also immaterial, it may be small. Even to touch a person

without his consent is actionable. Even an unwarranted kiss may be a

battery. But mere accidental contact with the body of a person does not

amount to battery. Such contacts cannot be avoided in the modern times.

Similarly touching another on the shoulder to attract his attention also

does not amount to battery.

The second element which must be proved in an action for battery is that

the use of force must be intentional and without lawful justification.

Jostling one another in a crowd is not actionable as battery if it is not


20/42

done deliberately. Thus inStanley v/s Powell8, one person of a shooting

party fired his gun at a fowl. The shot rebounded against the tree and

wounded the plaintiff. It was held that it was not a battery.

The least touching another in anger is battery, but if two or more personsmeet in a narrow passage and without any intent to harm, the one who

touches the other gently is not battery.

The third element which one has to prove in an action for trespass is that

the force used is without lawful justification. Consent, express or

implied, is lawful justification. A friendly push or shaking hand is not a

battery. To touch a person in a friendly manner to attract his attention is

not a battery.

False imprisonment

False imprisonment means the total restraint of persons liberty without

any lawful justification. False imprisonment is usually accompanied by

force or threat of force. It is also a crime known as wrongful

confinement u/s-340, IPC.

According to Dr. Winfield, false imprisonment consists of

imprisonment of a total restraint for some period, however, short, upon

the liberty of another without sufficient justification.

Thus in order to fix the liability for false imprisonment the plaintiff has

to prove the following essentials:

1. Total restraint.

2. Detention must be unlawful.

Total restraint

8 (1891) 1 QB 86


21/42

The period for which the restraint is committed may be very short. In

order to constitute false imprisonment duration is immaterial. There

should be total deprivation of liberty. There should be a boundary

beyond which he cannot go. Only a partial restraint upon ones liberty isno imprisonment.

Bird v/s Jones9is a good illustration on this point. In this case the

plaintiff was restricted from going on the highway as it was enclosed by

the defendant for watching a boat race. In this case there is partial

restriction on the liberty of the plaintiff; he was allowed to go in other

direction of the highway which was unrestricted. Thus, as there was

partial restraint on the freedom of the plaintiff, courts judgment turningdown the case of false imprisonment is correct.

Detention must be unlawful

In order to constitute false imprisonment it is necessary to prove that the

detention is unlawful and without any lawful justification. If the

defendant arrests the plaintiff and hands him over to the police, he would

be liable if the arrest is illegal. Where the defendant makes the report

and the police comes and after making an independent inquiry the police

arrests the plaintiff, the defendant would not be liable.

An action for false imprisonment will lie against any person who

authorizes or directs the unlawful arrests or detention of the plaintiff by

a ministerial officer of the law, as distinguished from a judicial officer or

court of justice. He, who sets in motion a merely ministerial officer, such

9 (1845) 7 QB 742


22/42

as, a constable, has no protection similar to that which is extended to the

litigant in a court of justice. He makes that ministerial officer his agent,

and is responsible for any arrest or detention so procured or authorized

as if it were his own act. It is necessary in such cases to prove suchdirection or authorization.

Kundan Lal v/s Dr. Des Raj10 the surety applied for the acceptance of

bail bond. The Superintendant of Police cancelled the bail bond and

ordered the re-arrest of the plaintiff. In pursuance of these orders the

plaintiff was re-arrested by the sub-inspector. The court held that the re-

arrest of the plaintiff was illegal and both the Superintendant and the

sub-inspector are liable for false imprisonment as the power to cancelthe bail bond and order the re-arrest rests with the magistrate under the

Criminal Procedure Code.

If the police or other authorities have power under a law to arrest and

detain a person then it will not amount to false imprisonment.

Section-41(1) of Cr.P.C, 1973, gives power to police officer to arrest any

person against whom a reasonable complaint has been made, or who hasbeen concerned with a cognizable offence, or against whom a credible

information has been received, or a reasonable suspicion exists of his

having been so concerned.

Section-43, Cr.P.C, provides that a private person can also arrest if in his

view he has committed a non-bailable and cognizable or is a proclaimed

offender.

Article-22(2) provides that every person who so arrested and detained

must be produced before the magistrate within 24 hours of such arrest

excluding the time necessary for the journey from the place of arrest to

10 (1945) 56 CPLR 331


23/42

the court of magistrate. And no person shall be detained for more than

24hours without the order of the magistrate.

Abdul Wahid v/s Tribhuwan Pati11 , in this case, the revenue officer

arrested the plaintiff and took him to tahsil because he had not paid thearrears of land revenue and detained him for sometimes and released

him later. It was held that the defendants were liable for false

imprisonment because the revenue authorities had no power to arrest the

plaintiff without warrant. He was taken to tahsil forcibly and against his

wish.

In false imprisonment, the burden of proof is on the plaintiff to prove

that he was arrested and detained without lawful justification.

Criminal trespass

Tort is a civil wrong and in civil wrong intention is not an essential

ingredient. In case of any injury damages can be awarded to the plaintiff.

But where the intention comes into the scene there constitutes a crime.

Thus trespass is both a civil and criminal wrong. Having discussed what

is trespass and its types let us now know what criminal trespass is.

Section-441, IPC, defines criminal trespass as any person who enters

upon the property of another with intent to commit an offence or to

intimidate, insult, or annoys any person in possession of such property,

commits an offence of criminal trespass. If such person enters upon the

property of another lawfully but unlawfully remains there with intent to

11 4 AIR 1974 All. 304


24/42

annoy or insult such person, he is also guilty of criminal trespass under

this section. Criminal force is not essential under this section.

Thus to attract the provisions of this section following has to be proved:

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

2. If such entry is lawful, then unlawfully remaining upon such

property.

3. Such entry or unlawful remaining must be with intent-

a) to commit an offence; or

b) to intimidate, insult or annoy any person in possession of the

property.

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

In this section the word property means immovable corporeal property

and not incorporeal property such as right of fishery and right to ferry.

The property must be in the actual possession of the someone, other than

the alleged trespasser. In the case ofGhasi12 it was held that a man canbe held guilty of criminal trespass on the land of another without even

personally entering upon it, if, for example, he causes others to build on

it against the wishes and in spite of protest of its owner.

2. Having lawfully entered into or upon such property, unlawfully

remains there:-

The original entry may be lawful on the premises but if he remains onthe property with the intent specified in this section then he commits

trespass. In case ofBudh Singh13 (1879) 2 All. 101 it was held that if a

person enters on the land in possession of another in the exercise of a

12 (1971) 39 All. 7213 (1879) 2 All. 101


25/42

bonafide claim of right but without any intention to intimidate, insult, or

annoy the person in possession, or to commit an offence, then although

he may have no right to the land, he cannot be convicted of criminal

trespass, because the entry was not made with any such intent asconstitutes the offence.

3. Intent to commit an offence:-

Criminal trespass depends on the intention and not upon the nature of

the act. In the case ofMadan Mandal14 (1913) 41 Cal. 837it was held

that if a person with intent to save his family and property from

imminent destruction commits criminal trespass on his neighbours land,

and cuts a portion of the dam belonging to his nieghbour; he is not guilty

of criminal trespass.

Section-447, IPC, provides that whoever commits criminal trespass

shall be punished with imprisonment of either description for a term

which may extend to three months, or with fine which may extend to

five hundred rupees, or with both.

Section-442, IPC, define house trespass as whoever commits criminal

trespass by entering into or remaining in any building, rent or vessel

used as 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.

Section- 448, IPC, provides that whoever commits house trespass shall

be punished with imprisonment of either description which may extendto one year, or with fine which may extend to one thousand rupees, or

with both.

14 (1931) 41 Cal. 837


26/42

Section-449, IPC, provides that whoever commits house trespass in

order to the committing of any offence punishable with death, shall be

punished with imprisonment for life, or with rigorous imprisonment for

a term not exceeding ten years, and shall also be liable to fine.Section-450, IPC, provides that whoever commits house trespass in

order to the committing of any offence punishable with an imprisonment

for life, shall be punished with imprisonment of either description for

term not exceeding ten years, and shall also be liable to fine.

Section-351, IPC, provides that whoever makes any gesture, or any

preparation intending or knowing it to be likely that such gesture, or

preparation will cause any person present to apprehend that he who

makes that gesture or preparation is about to use criminal force to that

person, is said to commit an assault. Explanation to this section explains

that mere words do not amount to assault. But the words which a person

uses may give to his gesture or preparation such a meaning as may make

those gestures or preparations amount to an assault.

Section-352, IPC, prescribes punishment for assault to any personotherwise than on grave and sudden provocation, shall be punished with

imprisonment of either description for a term which may extend to three

months, or with fine which may extend to five hundred rupees, or with

both.

Difference between Trespassing and Criminal Trespassing

Civil trespass, more commonly known as just trespassing, is a violation

of personal property rights and not a crime and usually comes with a fine

or community service.


27/42

In most states in the US criminal trespass is a criminal offence and is a

punishable under the law. The punishment for criminal trespass may

include fine or imprisonment for six months or both.

But the striking difference between the two is as follows:

Civil Trespass: Civil trespassing is illegal intrusion into anothers

property or structure, even if no harm is done to the property or person.

Once trespassed is proved, the trespasser is usually held legally

responsible for any damages resulting, regardless of whether the trespass

was done intentionally or unintentionally. Civil trespass is a minor

offence, and someone convicted for civil trespass can be left with

warning or nominal fine.

There are many methods by which a landowner can use to prevent

trespassing, usually depending on the terrain, risk, importance, size or

location of the property. Some of the most common and basic methods

include: Barbed wire, planting warning signs and symbols, fencing the

private area or deploying security personnel outside the gate or

compound.

Criminal Trespass: While the definition of criminal trespass vary fromstate to state, a person commits the crime of "criminal trespass" when

he/she enters or remains on another's property without his consent.

Besides this when trespass involves violence or injury to a person or

property, it is always considered criminal, and penalties may be

increased for more serious or malicious acts. In some jurisdiction

landowners have to prove criminal intent in order to prosecute him under

the criminal trespass law.

Some states consider a trespass criminal only if the defendant gainsunlawful entry into building or occupied structure where he is not

licensed or privileged to do so. The unlawful entry into anothers

premise may be with an intention to disrupt office work, theft or arson.

Some states specify that a trespass is not criminal until after a warning,

either in words or by posted signs and symbols, has been given to the


28/42

trespassers. In most states criminal trespass is punishable by fine,

restitution to the victim, community service or with imprisonment.

These penalties may be enhanced if the trespasser has caused significant

damage to the property.

Judicial trend

Case No- 1

Sarat Dip vs. State of Orissa, (2007) 38 OCR 605

In the matter of appeal against the order of Addl. Sessions Judge.

Facts


29/42

The case of the prosecution is based on the F.I.R. lodged by one Sri

Gangadhar Satpathy, the Forester, on 18. 10. 1988 at about 8:00A.M.

before the Officer- in- charge, Dhama Police Station. It is alleged that

the present appellant came the quarters of the informant (P.W. 1) whowas the Forester at Larasara. At that point of time, it is stated that the

informant was preparing himself to go bed after taking his dinner. It is

alleged that the accused- appellant broke open the door, entered into the

house and abused the informant with filthy language. The further case of

the prosecution is that the accused allegedly pressed the throat of the

informant and showing the informant three catridges, said that he

obtained the same in order to kill him.

It is further revealed from the F.I.R. that the accused also brought out a

knife and attempted to assault the informant with the same, but

somehow, the informant managed to free himself and escaped from that

place. Thereafter, it is alleged that the accused once again entered into

the official quarters of the Forester, damaged the household articles and

removed cash amounting to Rs. 500/-. On the basis of the aforesaid

allegations as contained in the F.I.R., Dhama Police Station Case No. 43of 1988 was registered and after investigation, charge sheet was

submitted against the appellant under sections 458, 307, and 380 of the

IPC. The plea of the appellant was a complete denial.

Judgment

The appellant has sought to file the present appeal challenging the orderof conviction as well as the sentence recorded by the Addl. Sessions

Judge, Sambalpur in Sessions Trial No. 4/45 of 1989 convicting the

appellant under section 458 of Indian Penal Code and sentencing him to

undergo R.I. for a period of one year.


30/42

In order to substantiate the case, the prosecution examined seven

witnesses. P.W.-1 the forester (informant), P.W.-2 the forest guard,

P.W.-3 the chowkidar of the Forest Inspection Bungalow, P.W.- 4 is the

post occurrence witness who was declared hostile to the prosecution,P.W.-5 is a witness to the seizure, P.W.-6 was also declared hostile and

P.W.- 7 is the Investigating Officer. On behalf of the defendant no

witness were examined.

Since I am of the view that lurking house trespass has not been proved

by the prosecution in the present case. I am further of the view that no

conviction under section 458 of the I.P.C. for lurking house trespass or

house breaking by night after preparation for hurt, assault or wrongfulrestraint is made out.

After having come to the conclusion as noted above, that an offence

under Section 458 I.P.C. has not been made out in the present case, yet, I

am of the view that it remains onerous task on the Appellate Court to

consider the facts of the present case and to see as to whether any other

offence under the Indian Penal Code is made out or not. In this respect,

it is important to take note of section 445 I.P.C. which pertains to housebreaking and fifth proviso thereof read with section 446 I.P.C. which are

quoted below:

445. House breaking- A person is said to commit house

breaking who commits house trespass if he effects his entrance into the

house or any part of it in any of the six ways hereinafter described; 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 six ways, that is to say-

Fifthly- if he effects his entrance or departure using criminal force or

committing an assault or by threatening any person with assault.


31/42

446. House breaking by night- whoever commits House

breaking after sunset and before sunrise, is said to commit house

breaking by night.

From the evidence on record, it transpires that the accused-appellant is aleader of the gangs who were doing illicit activities in the forest and

entered the house the forester as a show of strength/ intimidation. The

activities of the appellant were of such a nature that persons like

Forester, Forest Guard, and Chowkidar of Forest I.B. were so fearful of

him that they had to hide when the accused-appellant came back for the

second time into the quarts of the Forester/ informant (p.w.1).

In the present case at hand, the evidence of P.W. 1,2, and 3 clearly

establishes that the accused appellant committed house breaking by

breaking the door of P.W. 1 (informant). Since the appellant effected his

entrance by using criminal force and by committing assault or by

threatening to assault any person and such an offence took place at night,

the accused appellant is guilty of the offence u/s- 456 I.P.C. for lurking

house trespass or house breaking by night, which prescribes punishment

with imprisonment of either description for a term which may extend tothree years and shall also be liable to fine.

Considering the nature of the offence and the evidence on record, I deem

it necessary to exercise my authority vested u/s 386(b) (ii) of the Cr.P.C.

and on hearing the learned counsel for appellant and the learned counsel

for the state, the findings arrived at by the Trial Court are modified to

the noted above by maintaining the sentence of R.I. for one year

awarded by the Trial Court.

I find from the order dated 21.2.1990 passed by this court that the

appellant has been on bail in Misc. Case No. 41 of 1990. The bail order

stands cancelled and the appellant is directed to immediately surrender


32/42

before the learned Addl. Sessions Judge, Sambalpur in S.T. Case No.

4/45 of 1989 to serve out the remaining period of sentence imposed

against him.

The appeal is disposed of with the aforesaid directions.

Case No. 2

Vajrapu Sambayya Naidu and others

vs.

State of A.P. and others, 2003 AIR SCW 4212.


33/42

FACTS

The case of the prosecution is that at about 11.30 a.m. on 23 July, 1992

an incident took place in village of Ponnavolu in which deceased Lanka

Gangaraju lost his life and P.W. 1-6 were injured. It is not in the dispute

that the deceased had purchased the 2.50 acres of land from one

Satyalingam, the brother of Suribabu. Adjacent to the lands purchased

by the deceased, Suribabu owned 2.50 acres of land which he sold to A-

13. The case of the prosecution is that even the lands sold to A-13 were

in the cultivating possession of the deceased as a lessee despite the sale

of the land in favour of A-13. As a result of which one day when the

deceased with P.W. 1-6 was in his field and carrying on their weeding

operations accused numbering about 20 came and assaulted P.W. 1-6

and murderously assaulted the deceased which resulted in his death. On

the FIR filed by the P.W. 1-6 and after investigation as many as 18

charges were framed against 21 accused persons u/s- 148, 447, 302, 302

r/w. 149, 307, 307 r/w. 324 and 427 I.P.C.

Observation of the court

The crucial question which arose for determination in this case was one

relating to the possession of the land in question. The High Court has not

set aside the findings of the Trial Court but has, all the same, doubted

the correctness of this finding and proceeded on that basis. In our view,

the High Court was not justified in doing so. The Trial Court noticed the

evidence on record which conclusively established that A-13 purchasedthe land in question from Suribabu. The land was then in the possession

of the deceased. A-13, therefore, initiated a proceeding for the eviction

of the deceased and in that proceeding an order of eviction was passed.

If nothing further happened, one can find justification for finding of the


34/42

High Court that A-13 was the only legal owner of the property in

question, though he was not in actual possession thereof, and possession

was still with the deceased. The order of eviction was sought to be

executed in E.P.No. 37 of 1992 and pursuant to the proceeding of theCourt of Principal District Munsif in execution of the report of the Amin

in the delivery of possession proceeding, on 13th May, 1992 actual

delivery of possession took place.

Judgment

In the present case, trial court clearly recorded a finding that it was not

possible to find as to which accused caused which injury to deceased.

The trial court did not accept the evidence of the prosecution witness in

this regard. In the exercise of right of private defence of property, the

appellants were certainly entitled to use such force as was necessary, but

without causing death. In this state of evidence on record it is not

possible to record a definite finding as to which of the appellants, if at

all, exceeded their right of private defence, and therefore the benefit of

doubt must go to all the appellants. We notice that the cases of accused

No. 4, namely, Thammireddy Apparao and Lanka Tatayyalu, stand onthe same footing as that of the appellants. For some reasons they have

not preferred appeals before this court, but we feel that in the interest of

the justice they are also entitled to benefit of this judgment. We,

therefore, order their acquittal as well. The appellants herein as well as

the accused No.1and 4, namely Thammireddy Apparao and Lanka

Tatayyalu, if in custody, shall be released forthwith, if not required in

connection with any other case. This appeal is accordingly allowed.

Case No- 3


35/42

State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand and

others

WITH

Satish Kaur Sahani vs. Jagmohan Singh Kuldip Singh Anand and

others, 2004 AIR SCW 4767.

Facts

On 3-5-1990 there was a quarrel between complainant and the accused

on cleaning of drainage. On the same day at about 8.30 in the night

when the complainant was in her house with her son Manpreet Singh

(P.W.3), all the five accused are alleged to have entered the house of the

complainant with sticks, aluminium rods and tape recorders and

cassettes and started assaulting with the same. When the P.W.2 Jyoti

Ahuja the neighbour tried to intervene one of the accused Bhupinder

gave her a blow on the nose making her fall on the ground. It was also

alleged that the accused dragged the complainant out of the house and

repeatedly beat her. On the same night at about 9.30 in the night a

complaint was lodged in the Khar police station as F.I.R. Thecomplainant was medically treated at Bhabha Hospital by Dr. Kamble.

Dr. Mahesh Kumar Advani (P.W. 4) examined the reports and recorded

that the complainant received simple injuries on her hands, forehead and

chest. The occupants of the building jointly gave signed written

complaint to the DGP on 6-5-1990 requesting for stern action against the

accused. All the five persons belonged to the same family.

Observation of the court

We need not go into all the reasonings and logic adopted by learned

single judge in acquitting the accused. In our opinion, mention of only

two glaring facts would be sufficient to show that the High Court was


36/42

apparently in gross error in upsetting the judgment of conviction passed

by the trial court and confirmed by the Appellate Court whom the court

essentially required to assess the worth of evidence. The act alleged

against the accused clearly makes out a case of common intentionagainst them in committing house trespass and causing hurt to the

complainant. We, therefore, find no grounds available with the High

Court to upset the verdict of conviction and sentence passed by the two

courts and direct acquittal of the accused.

Judgment

In result, the acquittal passed by the High Court is set aside and

conviction and sentence passed by the Magistrate, as confirmed by the

Sessions Court, is maintained by directing that the accused be released

on Probation on their executing a bond for good behavior for a period of

one year to the satisfaction of the Trial Judge.

Appeal is allowed.

Conclusion

Law of tort is an uncodified branch of law, unlike other codified statutes

it is founded on morality that no one has a right to injure the right of


37/42

others intentionally or innocently15. Further in this part of law intention

is not essential element but infringement on right or injury to the right of

a person is essential. Thus where a property or person of anyone is

infringed or injured it must be punishable either with damages orcriminal punishment. Trespass to person occurs when a person assaults

another by causing apprehension in the mind of another that he is about

to use force, or causes battery by actually applying the apprehended

force, or falsely imprisons without any legal justification the free

movement of another within the circumscribed limits thereby infringing

upon the right to life and personal liberty and committing a tort. Assault

is also a criminal wrong which is punished under different sections like

441, 442, 447-450 and sections 351 and 352 of I.P.C. A landmark

example of trespass to person is the case of Bhopal Gas Leak disaster of

1984; it is still in the court continuing. Thousands of people got killed

then because of suffocation and poisoning by Methyl Isocyanate. People

are still getting affected by it because of its presence in the air and water.

This is a crime under section 304 Part- I of IPC and punishment for

which is imprisonment of either description for a term which may extend

to ten years or with fine or with both. But in my opinion keeping in view

the impact the offender should be sentenced to life imprisonment

because as many people are still getting affected by it some are getting

cancers, expecting mothers are giving births to still born babies or babies

with disability of mind and body and many more of such kind. Trespass

to property occurs by entering upon the property of another without that

persons permission or re-entering the property after denial, or placing

some objects on the property of another. When such trespass occurs thenthe remedy is of two types, i.e. extra judicial remedies and judicial

remedies. In extra judicial remedies the person can expel the trespasser

or can re-enter on his property or can detain the things which enter and

15Jai Laxmi Salt Works (P) Ltd. v. State of Gujarat, (1994) 4 SCC 1.


38/42

damage the property. In judicial remedies the person can file a suit for

damages or recover the possession under sections 5-8 of Specific Relief

Act or can file a suit for declaration of title u/s- 6 of the Specific Relief

Act or can file a suit for injunction if the trespasser repeatedly interfereswith the possession.

Last but not the least it would not be out of the place to mention here

that people in case of injury to property prefer a case in civil court but

when it comes to trespass to person people rather preferring a civil case

they prefer a criminal case because in the present context of the society

people are not satisfied by the compensation granted by the civil courts.

Bibliography

1. Salmond on Law of Torts.

2. Dr. J.N.Pandey Law of Torts and Consumer Protection Act.


39/42

3. Google.co.in.

4. Indian kanoon.com.

5. A.I.R. Indian Supreme Court Weekly.

6. Law Mirror.com

7. Orissa Criminal Reporter.

CONTENTS


40/42

Chapter Topic Page. No

I Introduction

Scope

Objective

Selection of Area

Research Methodology

Chapterization

II Development of trespass

III General legal framework law of trespass

IV Judicial trend

V Conclusion

Bibliography

Table of cases


41/42

Ellis vs. Fulhan B.C. [1938] 1 K.B. 212.

Purtill vs. Athlone U.D.C. [1968].

Christian vs. Johannesson [1956].

Abdul Subhan vs. Ramiat, AIR 1982 Mysore 90.

R. vs. ST. George (1840) 9 C. &P.

Stephen vs. Myers (1830) 4 C. &P. 349.

Stanley vs. Powell (1891) 1 QB 86.

Bird vs. Jones (1845) 7 QB 742.

Kundan Lal vs. Des Raj (1945) 56 CPLR 331.

Abdul Wahid vs. Tribhuwan Pati 4 AIR 1979 All. 304

Ghasi (1971) 39 All. 72.

Budh Singh (1879) 2 All. 101.

Madan Mandal (1913) 41 Cal. 837.

Sarat Dip vs. State of Orissa, (2007) 38 OCR 605.

Vajrapu Sambayya Naidu and Others vs. State of AP and others

2003 AIR SCW 4212.


42/42

State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand and

others, 2004 AIR SCW 4767.

venkat (Autosaved)

Documents

Transcript of venkat (Autosaved)