It is clear that to constitute criminal trespass the entry in
the property in possession of another must be;
(i) with intend to commit an offence;
or
(ii) to intimidate, insult or annoy any person in possession of the such
property. It is trespass with the requisite intention, as mentioned in the
said section, that would amount to criminal trespass. Here, the case of
the complainant itself is that the trespass allegedly committed by the
accused persons is for the sake of trespass. In other words, the trespass
has, allegedly, been made with the object of grabbing the property by
falsely asserting a right or claim over the same. Whether the right
actually exists or not, is quite immaterial in the context of the
correctness of issue of process. Thus, the acts attributed to the
accused persons would amount to only civil trespass and not criminal
trespass. Unlawfully taking possession of the property in somebody
else's possession, simpliciter, has not been made an offence punishable
under the Indian Penal Code. It is for the Legislature to decide
whether such cases should be made punishable. (There have been
State amendments (Orissa & U.P.) to Section 441 to make trespass
with the intention of taking unauthorised possession of property an
offence). The learned counsel for the complainant attempted to
suggest that even under section 441 of the IPC, as it stands, such
trespass would amount to criminal trespass, but I am unable to agree
with him. If this theory is accepted, the distinction between civil
trespass and criminal trespass would be abolished and every trespass can be termed as 'criminal trespass'.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2827 OF 2013
Shrikant Purshottam Paranjape & Ors.Vs. The State of Maharashtra & Anr.
CORAM : ABHAY M. THIPSAY, J.
DATED : SEPTEMBER 30, 2014.
Citation;2016 ALLMR(CRI)1394
