Report No. 42

17.76. Section 441 to be amended.-

Out of the definition of criminal trespass in section 441, a curious difficulty has arisen. The definition is in these words.-

"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'."

The difficulty is about the second paragraph, the object of which seems to be to cover the case of a person who enters another's property without any intention of annoying him or committing any offence there, but later changes his mind and insists on staying on the property in order to annoy the person in possession. Some courts have thought that if the initial entry is unlawful though not accompanied by any of the intentions mentioned in the section, then the second part of the definition becomes inapplicable, and if such a wrong-doer continues to stay on the property expressly for annoying the person in possession, he commits no offence. The Calcutta High Court1 has put the matter thus:

"There appears to be two types of cases which arise for consideration, one of the type of the case of Baldewa v. Emperor, AIR 1933 All 816, of unlawful entry without remaining with one of the intentions prescribed and secondly a case like the present, of the unlawful entry with the necessary intent followed by the unlaWful remaining also with the necessary intent. In my opinion, neither type of case is covered by the plain words of section 441 plainly interpreted. Whether they ought to be made punishable or not is a matter for the legislature".

We are not worried by the second situation mentioned above, for, in that case, the entry itself will be punishable; but the first situation, if understood in the light of this judgment, could hardly be tolerated. It could not be that the section punishes a person who acts lawfully in the beginning but later forms an evil intent, but not a person who acts unlawfully from the beginning. It seems to us desirable, that the words of the definition should be altered to bring out its purpose more clearly.

We have noticed a recent amendment made in Uttar Pradesh in this respect. That is designed to deal with a trespasser who refuses to vacate the property, after proper notice has been served on him. We do not think the present Code is a fit place for such special legislation, and we are not, therefore, adopting it. The real defect will be met by revising the section as follows:

"441. Criminal trespass.- Whoever

(a) 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

(b) having entered into or upon such property with out such intent, unlawfully remains there with such intent, is said to commit criminal trespass".

1. Sunil Kumar, AIR 1951 Cal 297 (298).

17.77. Section 442.-

In section 442, we considered the question whether house-trespass should include trespass into a vehicle or aircraft,1 but decided that no such change is needed.

1. Compare section 380 as proposed to be amended.

17.78. Sections 443 and 444 omitted and sections 445 revised to define "burglary".-

As indicated above, sections 443 and 444 which define house-trespass and lurking house-trespass by night should be omitted and instead of house-breaking, burglary should defined in section 445 as follows.-

"445. Burglary.- A person commits burglary, i.-

(a) he commits house-trespass in order to commit theft or any offence punishable with imprisonment for seven years or with a more severe punishment, or

(b) having committed house-trespass, he commits theft or any such offence as aforesaid."

Clause (b) of the above definition is intended to cover cases where the original entry is not proved to have been with intent to commit the specified offence, but the trespasser does commit the specified offence after his entry.

17.79. Section 446 to be omitted.- Section 446 which defines house-trespass by night may omitted.

17.80. Sections 447 to 460 to be revised.-

Sections 447 to 460 which provide graded punishments may be replaced by the following sections.-

"447. Punishment for criminal trespass.- Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

448. Punishment for house-trespass.- Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

449. House-trespass after preparation for hurt, assault or wrongful restraint.- Whoever commits house-trespass, having made preparatio.-

(a) for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or

(b) 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 seven years and shall also be liable to fine.1

450. Punishment for burglary.- Whoever commits burglary, shall be punished with rigorous imprisonment for a term not exceeding ten years, and shall also be liable to fine.2

451. Grievous hurt caused whilst committing burglary.- Whoever, whilst committing burglary.-

(a) causes grievous hurt to any person, or

(b) attempts to cause death or grievous hurt to any person, shall be punished with rigorous imprisonment for a term which may extend to fourteen years, and shall also be liable to fine.3

452. All persons jointly concerned in burglary punishable where death or grievous hurt caused by one of them.- If, at the time of committing burglary, any person guilty of such offence shall voluntarily cause or attempt to cause death or grievous hurt to any person, every person jointly concerned in committing such burglary shall be punished with rigorous imprisonment for a term which may extend. to fourteen years, and shall also be liable to fine."4

1. Existing section 452.

2. New section covering existing sections 449, 450 and 451.

3. Existing section 459 modified.

4. Existing section 460 modified.

17.81. Sections 461 and 462.- Sections 461 and 462 do not require any comments or change.

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