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

 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
 ACKNOWLEDGEMENT

It is my proud privilege to my express my gratitude to my parents and

friends for their untiring support and help. I also want to express my
gratitude to my principal and course co-ordinator for their blessings
and timely advices. Particularly, I take this opportunity to express my
gratefulness to my esteemed teacher and guide Dr. Prasant Kumar
Swain, Lecturer, University Law College, Utkal University for his
valuable and meticulous guidance.
Last but not the least I want to acknowledge our librarian for his untiring
and impartial help in collection of materials from the library for my
project.

D.V.N.MURTY
Rl.No.-60200UT07038
University Law College
Vani Vihar, Bhubaneswar.
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 a
number 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 person’s 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 wrong
includes 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
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
for trespass is made to pay damages, may well be held liable for criminal
trespass under IPC and is subjected to imprisonment and fine also.
RESEARCH METHODOLOGY
The assigned project work demands a doctrinal approach of
methodology which is adopted in the entire work.
The entire method consists of several stages leading to the completion of
an exhaustive report on the assigned topic.
In the first stage a topic was assigned to me for preparing a report. The
topic of my project is “CRITICAL ANALYSIS OF LAW OF
TRESPASS.” After getting the topic, I proceeded to collect all the
related available materials on the subject of my study. I visited the
college library and collected every bit of information, relevant to my
project work. I have also searched the journals and browsed the internet
to collect some relevant case laws on my topic. In the process I collected
some cases regarding the topic “critical analysis of Law of trespass” and
analysed them thoroughly.
Finally, after collecting the data on the subject, I approached my guide
Dr. Prasant Kumar Swain for the accomplishment of my project work.
CHAPTERIZATION
The data collected for the project has been placed in five chapters. The
first chapter deals with introduction, scope and objective, selection area,
research methodology and chapterization. The second chapter deals with
development of trespass. Third chapter deals with general legal
framework. On Law of trespass the fourth chapter deals with judicial
trend. Finally the fifth chapter deals with conclusion.
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 person
or 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 any
other 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
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 also
taken 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.
 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 merely
consequential. 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 one’s 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 one
which 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 unhindered
strolls 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”
 In the case of ELLIS v/s FULHAN B.C2. it has been held that it is
sometimes difficult to distinguish between a trespasser and a person
entering lawfully by the tacit permission of the occupier. Yet
MacKinnon L.J. said, “We all know what trespassers are, and that
category is clear”.
Again in case of PURTILL v/s ATHLONE U.D.C.3 it has been held
that there is even some authority for the proposition that an entrant
may be a trespasser if the ostensible purpose for his being on the
premises is not his real purpose, which was unlawful.
In case of CHRISTIAN v/s JOHANNESSON4 the Hon’ble court held
that no person is to be treated as a trespasser who enters in order to
hold any manner of communication with the occupier or any other
person on the premises, unless he knows that his entry is prohibited.

2
1938 1 KB 212
3
[1968]
4
[1956]
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 actionable per 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.
 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 types
namely:-
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 continuing
exercise 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 another’s 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 one’s 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 of ABDUL SUBHAN v/s RAMIAT5 it 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.
5
AIR 1982 MYSORE 90
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 another’s land after his license has been revoked, commits
a 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 in
physical 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 another’s 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:
 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 one’s own chattel, re-entry by the owner, entry by the public
servant etc., where an owner has been dispossessed by another may
 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, to
take 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 remedies
2. 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
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 he
can 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.
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 attempts
to 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
plaintiff’s 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.”
 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 of R v/s ST. GEORGE6
it was held that it is actionable to point a gun at a man in a threatening
manner, 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 of Stephen v/s Myers7 is 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 being
sued 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
 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 the
slightest 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
done deliberately. Thus in Stanley 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 persons
meet 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 person’s 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
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 one’s liberty is
no 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 turning
down 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
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 such
direction 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 cancel
the 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 has
been 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
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 the
arrears 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
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 of Ghasi12 it was held that a man can
be 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 on
the property with the intent specified in this section then he commits
trespass. In case of Budh 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. 72
13
(1879) 2 All. 101
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 as
constitutes 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 of Madan Mandal14 (1913) 41 Cal. 837 it was held
that if a person with intent to save his family and property from
imminent destruction commits criminal trespass on his neighbour’s 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 extend
to one year, or with fine which may extend to one thousand rupees, or
with both.

14
(1931) 41 Cal. 837
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 person
otherwise 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.
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 another’s

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 from

state 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 gains

unlawful entry into building or occupied structure where he is not
licensed or privileged to do so. The unlawful entry into another’s
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
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
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) who
was 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. 43
of 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 order
of 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.
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 wrongful
restraint 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 house
breaking 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.”
 “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 a
leader 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 to
three 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
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.
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 purchased
the 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
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 the
Court 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 on
the 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
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. The
complainant 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 reasoning’s 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
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 intention
against 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
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 or
criminal 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
person’s permission or re-entering the property after denial, or placing
some objects on the property of another. When such trespass occurs then
the 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

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

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
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
 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.
 State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand and
others, 2004 AIR SCW 4767.