Explain House Trespass and how does it convert into House Breaking. ~ Balochistan Law Forum

Q. Explain House Trespass and how does it convert into House Breaking.

Q. Define and differentiate Criminal Trespass, House Trespass and House Breaking.

Q. Explain “Lurking House Trespass” “Trespass” & “House Breaking”.

Q. Define and discuss House Breaking, House Trespass & Criminal Trespass.

1.INTRODUCTION.

Trespass is simply passing over the property of someone else by a Un-authorize person. If such an act is done with criminal intention, it would amount to Criminal Trespass. Intention to commit the offence of Criminal Trespass must be present from the beginning. If the entry is without the intention to Criminal Trespass, no offence could b made out. Its different kinds, such as Criminal Trespass, Lurking House Trespass & House Breaking are defined and punishable separately under different provisions of Pakistan Penal Code 1860.

2. RELEVANT PROVISIONS.

(I). Sections 441 & 447 of Pakistan Penal Code 1860 deal with Criminal Trespass.

(II). Sections 442 & 448 to 452 of Pakistan Penal Code 1860 deal with House Trespass.

(III). Sections 443 & 453 to 460 of Pakistan Penal Code 1860 deal with Lurking House Trespass.

(IV).Sections 444 & 456 to 458 of Pakistan Penal Code 1860 deal with Lurking House Trespass By Night.

(V). Sections 445 & 453 to 455 of Pakistan Penal Code 1860 deal with House Breaking.

(VI). Sections 446 & 456 to 458 and 460 of Pakistan Penal Code 1860 deal with House Breaking By Night.

3. MEANING OF TRESPASS UNDER BLACK’S LAW DICTIONARY.

Any unlawful interference with one’s person, property, or right.

4. DEFINITION OF TRESPASS.

Trespass is a voluntary wrongful act against the person of another or to the disturbance of his possession of property against his will.

CRIMINAL TRESPASS.

5. DEFINITION OF CRIMINAL TRESPASS.

(I). Definition of Trespass Under Black’s Law Dictionary.

Offence is committed when a person without effective consent enters or remains on property or in building of another knowingly or intentionally or recklessly when he had notice that entry was forbidden or received notice to depart but failed to do so.

(II). Definition of Criminal Trespass Under Section 441 of Pakistan Penal Code 1860.

Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass"

6. INGREDIENTS OF CRIMINAL TRESPASS UNDER SECTION 441 OF PAKISTAN PENAL CODE 1860.

Following are the ingredients of Criminal Trespass under Section 441 of Pakistan Penal Code 1860.

(I). Entry Into or Upon The Property.

The offence of Criminal Trespass is not complete unless the offender makes an entry into or upon the property of another. The word property is wide enough to cover movable property into or upon which it is possible for a person to enter or upon entering remain with the intention described in the section. Entry may be 2 kinds under this section.

(i). Lawful Entry.

In some cases the entry may be lawful but still Criminal Trespass may be committed where there is unlawful presence either directly or constructively against the will of the person in possession.

(a). Illustration.

‘A’ went to meet ‘B’ in his office. Suddenly they began to fight on a certain controversy and ‘B’ asks ‘A’ to leave. Here ‘A’ would commit Trespass if he remains there even for a minute after he is ordered to leave ‘B’s place.

(ii). Unlawful Entry.

Where the entry from the very beginning is unlawful and without the consent of the person in possession of the property, it shall constitute Criminal Trespass.

(II). Property Must Be In Another’s Possession.

The possession must be actual possession of some person other than the alleged trespassed.

(III). Intention To Commit An Offence.

Criminal Trespass depends on the intention of the offender and not upon the nature of the act. Thus this section is so worded to show that the person committing Criminal Trespass must do so with an intention to cause annoyance etc.

Case Law.

Madan Mandal Vs. The State, 1913.

Where a man enters his neighbour’s land to save his family does not become liable to Criminal Trespass.

(IV). Intention To Intimidate, Insult or Annoy Any Person In Possession.

Criminal Trespass is an offence only if it is committed with one of the intents specified in the section. They may be follows;

(i). Intention To Intimidate.

Intimidate means to overawe, to put in fear, by a show of force or threats or violence.

Case Law.

AIR 1952 Hyd. 38.

Where a person enters the house of another and throws out his servant by force, he commits an offence under this section.

(ii). Intention To Annoy.

The word Annoy must be taken to mean annoyance that would generally and reasonably affect an ordinary person. Annoyance is a wider term than nuisance. Anything that affects the mental peace of an ordinary man would amount to annoyance.

(iii). Intention To Insult.

The term Insult is used in this section in its general meaning i.e “Gross indignity’.

(V). Having Lawful Entered Into or Upon Such Property, Unlawful Remains There.

The second part of the section applies where the entry is lawful, but subsequently the person who has entered insists on unlawful remaining, either directly or constructively against the will of the person in possession, with intent to commit an offence or to intimidate, insult or annoy any person in possession of the property.

Case Law.

Mohanta Lal Das Vs. Monmohas, 1950.

Where the accused took possession of the plaintiff’s room when he left for a while but refused to vacate the same later on. It was held to be Criminal Trespass.

7. OBJECT OF SECTION 441 OF PAKISTAN PENAL CODE 1860.

Object of Section 441 of Pakistan Penal Code 1860 is to maintain peace by protecting peaceful possession irrespective of title. (PLD 1975 SC 556).

8. RIGHT OF PRIVATE DEFENCE AGAINST CRIMINAL TRESPASS.

In case of Criminal Trespass, the right of private defence continues so long as the trespass continues and is controlled by Section 99 of Pakistan Penal Code 1860.

Case Law.

PLD 1983 SC 135.

Trespasser on property cannot claim right of private defence of his person unless he first brings to an end his own act of trespass.

9. BONA FIDE CLAIM; EXCEPTION TO THE PRINCIPLE LAID DOWN IN SECTION 441 OF PAKISTAN PENAL CODE 1860.

If a person enters on land in possession of another in exercise of a bona fide 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 which is necessary to constitute the offence. An example of it may than an employee of WAPDA entering a house to check the electricity meter.

10. PUNISHMENT FOR CRIMINAL TRESPASS UNDER SECTION 447 OF PAKISTAN PENAL CODE 1860.

Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to 3 months, or with fine which may extend to 1[1500 rupees] , or with both.

HOUSE TRESPASS .

11. DEFINITION OF HOUSE TRESPASS UNDER SECTION 442 OF PAKISTAN PENAL CODE 1860.

Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a 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".

Explanation.

The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house trespass.

12. INGREDIENTS OF HOUSE TRESPASS UNDER SECTION 442 OF PAKISTAN PENAL CODE 1860.

Following are the ingredients of House Trespass under Section 442 of Pakistan Penal Code 1860.

(I). Criminal Trespass.

House Trespass is a Criminal Trespass. All the Essentials of Criminal Trespass must be present to constitute, the offence of House Trespass.

(II). By Entering Into or Remaining In Any Building.

House Trespass should be by entering into or remaining in any building, tent, or vessel, in the possession of another and used as human dwelling or as a place of worship or as a place of custody of property.

(i).” Entering Into”:

The introduction of any part of the Trespasser’s body is entering sufficient to constitute House Trespass.

(ii). “Building”:

The ordinary and usual meaning of building is an enclosure of brick or stone work covered by a roof.

(III). Intention.

There must have been an intention to commit an offence or an intention to intimidate, insult or annoy any person in possession of property. If such intention does not exist then the accused cannot be held guilty under this section.

13. SCOPE OF SECTION 442 OF PAKISTAN PENAL CODE 1860.

Section 442 of Pakistan Penal Code 1860 does not contemplate the intended or the prospective use of the building. Only those buildings fall within the purview of this section which has been put to the uses specified in the section.

14. PUNISHMENT FOR HOUSE TRESPASS UNDER SECTION 448 OF PAKISTAN PENAL CODE 1860.

Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to 1 year, or with fine which may extend to 1[3000] ,or with both.

15. HOUSE TRESPASS IN ORDER TO COMMIT OFFENCE PUNISHABLE WITH DEATH UNDER SECTION 449 OF PAKISTAN PENAL CODE 1860.

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 10 years, and shall also be liable to fine.

16. HOUSE TRESPASS IN ORDER TO COMMIT OFFENCE PUNISHABLE WITH IMPRISONMENT FOR LIFE UNDER SECTION 450 OF PAKISTAN PENAL CODE 1860.

Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment for life, shall be punished with imprisonment of either description for a term not exceeding 10 years, and shall also be liable to fine.

17. HOUSE TRESPASS IN ORDER TO COMMIT OFFENCE PUNISHABLE WITH IMPRISONMENT UNDER SECTION 451 OF PAKISTAN PENAL CODE 1860.

Whoever commits house trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to 2 years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to 7 years.

18. HOUSE TRESPASS AFTER PREPARATION FOR HURT, ASSAULT OR WRONGFUL RESTRAINT UNDER SECTION 452 OF PAKISTAN PENAL CODE 1860.

Whoever commits house-trespass having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine.

LURKING HOUSE TRESPASS.

19. MEANING OF LURK.

Generally Lurk means to be or stay hidden.

20. DEFINITION OF LURKING HOUSE TRESPASS UNDER SECTION 443 OF PAKISTAN PENAL CODE 1860.

Whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit "lurking house-trespass".

21. INGRDIENTS OF LURKING HOUSE TRESPASS.

Following are the ingredients of Lurking House Trespass.

(I). Criminal Trespass.

In order to attract the provision of Section 443 of Pakistan Penal Code 1860, there must be a Criminal Trespass.

(II). House Trespass.

In order that offence of Lurking House Trespass may constitute, there must be a House Trespass. As House Trespass, after taking precaution to conceal it constitutes Lurking House Trespass.

(III). Being Made In Surreptitious Manner.

In order to constitute Lurking House Trespass the offender must take some active means to conceal his presence.

(IV). Concealment From Person Who Has Right To Excluder.

The concealment should however be from such person who has the right to exclude or eject the trespasser.

22. PUNISHMENT FOR LURKING HOUSE TRESPASS-UNDER SECTION 453 OF PAKISTAN PENAL CODE 1860.

Whoever commits lurking house-trespass shall be punished with imprisonment of either description for a term which may extend to 2 years, and shall also be liable to fine.

23. PUNISHMENT FOR LURKING HOUSE TRESASS IN ORDER TO COMMIT AN OFFENCE PUNISHABLE WITH IMPRISONMENT UNDER SECTION 454 OF PAKISTAN PENAL CODE 1860.

Whoever commits lurking house-trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to 3 years, and shall also be liable to fine, and if the offence intended to be committed is theft, the term of the imprisonment may be extended to 10 years.

24. PUNISHMENT FOR LURKING HOUSE-TRESPASS AFTER PREPARATION FOR HURT, ASSAULT OR WRONGFUL RESTRAINT UNDER SECTION 455 OF PAKISTAN PENAL CODE 1860.

Whoever commits lurking house-trespass, having made preparation for causing hurt to any person, or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt or of assault or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.

25. PUNISHMENT FOR LURKING HOUSE-TRESPASS UNDER SECITON 456 OF PAKISTAN PENAL CODE 1860.

Whoever commits lurking house-trespass by night nshall be punished with imprisonment of either description for a term which may extend to 3 years, and shall also be liable to fine.

26. PUNISHMENT FOR LURKING HOUSE-TRESPASS IN ORDER TO COMMIT OFFENCE PUNISHABLE WITH IMPRISONMENT UNDER SECITON 457 OF PAKISTAN PENAL CODE 1860.

Whoever commits lurking house-trespass by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to 5 years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to 14 years.

27. LURKING HOUSE-TRESPASS AFTER PREPARATION FOR HURT, ASSAULT OR WRONGFUL RESTRAINT UNDER SECTION 458 OF PAKISTAN PENAL CODE 1860.

Whoever commits lurking house-trespass by night having made preparation for causing hurt to any person, or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to 14 years, and shall also be liable to fine.

28. HURT CAUSED WHILST COMMITTING LURKING HOUSE-TRESPASS UNDER SECTION 459 OF PAKISTAN PENAL CODE 1860.

Whoever, whilst committing lurking house-trespass causes hurt to any person or attempts to commit Qatl of or hurt to, any person shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to 10 years, and shall also be liable to the same punishment for committing qatl or causing hurt or attempting to cause qatl or hurt as is specified in Chapter XVI of this Code.

29. PERSONS JOINTLY CONCERNED IN LURKING HOUSE-TRESPASS PUNISHABLE FOR QATL OR HURT CAUSED BY ONE OF THEM UNDER SECTION 460 OF PAKISTAN PENAL CODE 1860.

If, at the time of the committing of lurking house-trespass by night or house-breaking by night, any person guilty of such offence shall voluntarily cause or attempt to commit qatl of, or hurt to, any person, every person jointly concerned in committing such lurking house-trespass by night or house-breaking by night, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to 10 years and shall also be liable to the same punishment for committing qatl or causing hurt or attempting to cause qatl or hurt as is specified in Chapter XVI of this Code.

LURKING HOUSE TRESPASS BY NIGHT.

30. DEFINITION OF LURKING HOUSE TRESPASS BY NIGHT UNDER SECTION 444 OF PAKISTAN PENAL CODE 1860.

Whoever commits lurking house-trespass after sunset and before sunrise, is said to commit 'lurking house-trespass by night".

31. INGREDIENTS OF LURKING HOUSE-TRESPASS BY NIGHT.

Following are the ingredients of Lurking House Trespass by night.

(I). Lurking House-Trespass.

For a trespass to be Lurking House-trespass by night it must contain all the ingredients of sections 441, 442 & 443 of Pakistan Penal Code 1860.

(II). After Sunset & Before Sunrise.

For a Lurking House-Trespass to be a Lurking House-Trespass By Night it is essential that it must be committed after sunset & before sunrise.

32. PUNISHMENT FOR LURKING HOUSE TRESPASS BY NIGHT UNDER SECITON 456 OF PAKISTAN PENAL CODE 1860.

Whoever commits lurking house-trespass by night, shall be punished with imprisonment of either description for a term which may extend to 3 years, and shall also be liable to fine.

33. PUNISHMENT FOR LURKING HOUSE TRESPASS BY NIGHT OR IN ORDER TO COMMIT OFFENCE PUNISHABLE WITH IMPRISONMENT UNDER SECITON 457 OF PAKISTAN PENAL CODE 1860.

Whoever commits lurking house-trespass by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to 14 years.

34. LURKING HOUSE TRESPASS BY NIGHT AFTER PREPARATION FOR HURT, ASSAULT OR WRONGFUL RESTRAINT UNDER SECTION 458 OF PAKISTAN PENAL CODE 1860.

HOUSE-BREAKING.

35. MEANING OF HOUSE-BREAKING.

House-Breaking means breaking and entering a dwelling-house with intent to commit any felony therein.

36. DEFINITION OF HOUSE-BREAKING UNDER SECITON 445 OF PAKISTAN PENAL CODE 1860.

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 such six ways, that is to say:

First: If he enters or quits through a passage made by himself, or by any abettor of the house-trespass, in order to the committing of the house-trespass.

Secondly: If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building.

Thirdly: If he enters or quits through any passage which he or any abettor of the house trespass has opened, in order to the committing of the house-trespass by any means by which that passage was not intended by the occupier of the house to be-opened.

Fourthly: If he enters or quits by opening any lock in order to the committing of the house-trespass, or in order to the quitting of the house after a house-trespass.

Fifthly: if he effects his entrance or departure by using criminal force of committing an assault, or by threatening any person with assault.

Sixthly: If he enters or quits any passage which he knows to have been fastened against such entrance or departure, and to. have been fastened by himself or by an abettor of the house-trespass.

Explanation: Any out-house or building occupied with a house, and between, which and. such house there is an immediate internal communication, is part of the house within the meaning of this section.

Illustrations.

(a). A commits house-trespass by making a hole through the wall of Z's house, and putting his hand through the aperture. This is house breaking.

(b). ‘A’ commits house-trespass by creeping into a ship at a port hole between decks. This is house-breaking.

(c). ‘A’ commits house-trespass by entering ‘Z's house through a window. This is house-breaking.

(d). ‘A’ commits house-trespass by entering ‘Z's house through the door, having opened a door, which was fastened. This is house-breaking.

(e). ‘A’ commits house-trespass by entering ‘Z's house through the door having lifted a latch by putting a wire through a hole in the door. This is house-breaking.

(f). ‘A’ finds the key of ‘Z's house door, which ‘Z’ had lost, and commits house-trespass by entering ‘Z's house, having opened the door with that key. This is house-breaking.

(g). ‘Z’ is standing in his doorway. ‘A’ forces a passage by knowing ‘Z’ down, and commits house-trespass by entering the house. This is house-breaking.

(h). ‘Z’, the door-keeper of ‘Y’ is standing in ‘Y's doorway. ‘A’ commits house-trespass by entering the house, having deterred ‘Z’ from opposing him by threatening to beat him. This is house-breaking.

37. INGREDIENTS OF HOUSE-BREAKING.

Following are the ingredients of House-Breaking.

(I). House Trespass.

Hose-Breaking is nothing but an aggravated form of House Trespass. So in order to prove House-Breaking, the prosecution has to first of all prove House Trespass.

(II). Intention.

Intention is the gist of an offence under this section. Where there is nothing in evidence as to what offence neither the accused intended to commit nor any finding by courts below that entry into the house was with any of the intents mentioned in Section 441 of Pakistan Penal Code 1860, the accused cannot be convicted.

(III). Modes of Effecting Or Quitting.

To qualify a Criminal Trespass a House-Breaking the entrance or departure of the trespasser should be affected by any of the 6 ways mentioned in Section 445 of Pakistan Penal Code 1860.

(IV). Entry Or Departure of The Accused.

To qualify a House Trespass a House-Breaking, it is not necessary that the entrance of the accused should be deceptive or in any of the ways mentioned in the section, rather a House Trespass may be well proved as House-Breaking if the same is committed by using the passage in quitting the dwelling.

38. PUNISHMENT FOR HOUSE-BREAKING UNDER SECTION 453 OF PAKISTAN PENAL CODE 1860.

Whoever commits house-breaking, shall be punished with imprisonment of either description for a term which may extend to 2 years, and shall also be liable to fine.

39. PUNISHMENT FOR HOUSE-BREAKING IN ORDER TO COMMIT AN OFFENCE PUNISHABLE WITH IMPRISONMENT UNDER SECTION 454 OF PAKISTAN PENAL CODE 1860.

Whoever commits housebreaking, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to 3 years, and shall also be liable to fine, and if the offence intended to be committed is theft, the term of the imprisonment may be extended to 10 years.

40. PUNISHMENT FOR HOUSE-BREAKING AFTER PREPARATION FOR HURT, ASSAULT OR WRONGFUL RESTRAINT UNDER SECTION 455 OF PAKISTAN PENAL CODE 1860.

Whoever commits House-Breaking, having made preparation for causing hurt to any person, or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt or of assault or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.

HOUSE-BREAKING BY NIGHT.

41. DEFINITION OF HOUSE-BREAKING BY NIGHT UNDER SECTION 446 OF PAKISTAN PENAL CODE 1860.

Whoever commits house-breaking after sunset and before sunrise, is said to commit "house-breaking by night."

42. PUNISHMENT FOR HOUSE BREAKING BY NIGHT UNDER SECITON 456 OF PAKISTAN PENAL CODE 1860.

Whoever commits House-Breaking by night, shall be punished with imprisonment of either description for a term which may extend to 3 years, and shall also be liable to fine.

43. PUNISHMENT FOR HOUSE BREAKING BY NIGHT IN ORDER TO COMMIT OFFENCE PUNISHABLE WITH IMPRISONMENT UNDER SECITON 457 OF PAKISTAN PENAL CODE 1860.

Whoever commits house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to 5 years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to 14 years.

44. HOUSE BREAKING BY NIGHT AFTER PREPARATION FOR HURT, ASSAULT OR WRONGFUL RESTRAINT UNDER SECTION 458 OF PAKISTAN PENAL CODE 1860.

Whoever commits house-breaking by night, having made preparation for causing hurt to any person, or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to 14 years, and shall also be liable to fine.

45. PERSONS JOINTLY CONCERNED IN LURKING HOUSE-TRESPASS OR HOUSE-BREAKING BY NIGHT PUNISHABLE FOR QATL OR HURT CAUSED BY ONE OF THEM UNDER SECTION 460 OF PAKISTAN PENAL CODE 1860.

46. CONCLUSION.

The pith and marrow of all the previous discussion there is no iota untruth shows that Trespass is simply passing over the property of someone else by a Un-authorize person. If such an act is done with criminal intention, it would amount to Criminal Trespass. Intention to commit the offence of Criminal Trespass must be present from the beginning. If the entry is without the intention to Criminal Trespass, no offence could b made out. Its different kinds, such as Criminal Trespass, Lurking House Trespass & House Breaking are defined and punishable separately under different provisions of Pakistan Penal Code 1860.