Anticipatory Bail

An application for bail is made when the accused is arrested and seeks relief to be released from the custody on furnishing some security. Anticipatory bail is, however, a different situation, which is the person making an application for bail even before being arrested. Section 438 of the Criminal procedure code was added by the amendment act of 2005 to the act. This amendment was made on the recommendation of the 41^st Law Commission Report.

WHAT IS ANTICIPATORY BAIL?

Section 438 deals with anticipatory bail which is an application filed by a person who apprehends to be arrested with regard to a non-bailable offense. Such an application after being approved protects the person from arrest at the sole discretion of the court. It protects the person from being arrested in a particular case. However, such protection cannot be passed for an unlimited time, if so, it is liable to be set aside.

Purpose:  The purpose of having such a provision of bail before the arrest is to protect the accused from unnecessary disgrace and harassment in case, the accusation is false. It is a temporary relief granted to a person. No humiliation should be caused to the person at the same time preserving the faith of the people in the judicial system.

In the case of Balchand Jain v. State of Madhya Pradesh[1], the court highlighted that the power has to be exercised carefully and only in exceptional cases.

WHEN CAN ONE APPLY FOR ANTICIPATORY BAIL?

The case of Adri Dharam Das v State of West Bengal,[2] explained that an interim order protecting from arrest would interfere with the investigation and therefore the expression used is “reason to believe” is used to indicate that there should be an apprehension of arrest based on reasonable grounds. Such grounds must be capable of being examined. Mere fear of the applicant is not sufficient for such an application to be made.

WHEN CAN ONE GET ANTICIPATORY BAIL?

While granting anticipatory bail, the court must take into consideration the personal liberty of the applicant on one side and the interest of investigation on the other side as it affects the interest of the public at large.

The following factors are taken into consideration, as laid down in the case of Mohammad Masood v State of Karnataka[3]:

1. The nature and seriousness of the offense;
2. The severity of the offence;
3. Nature of the evidence collected so far;
4. Character and behavior of the accused;
5. The probability that the accused might go absconding;
6. Probability and possibility of the repetition of such crime;
7. The likelihood of tampering and influencing the pieces of evidence and the witnesses respectively;
8. The interest of the people and the state.

After considering the factors, if the court is satisfied that such liberty shall not be misused and all the due process of law shall be followed, then it will grant an application of anticipatory bail. After having an anticipatory bail, the person can be released immediately after arrest.

POWER OF THE COURT

An applicant can make an application in the court of session and being unsuccessful there can move to the High Court for the same. Under the section, the courts have a wide discretionary power. There can be no strict universal application of these rules. Thus, it varies based on the facts of the case and remains unguided. The court on an application received by the prosecution can also cancel the bail and order for the arrest of the person, i.e. cancellation of bail.

The court ought to give a reason for its discretion of granting or not granting such bail. The guidelines, in this case, was reiterated, when the high court exercises power without reason, the Apex court needs to interfere to avoid any failure of justice.

The validity of anticipatory bail: An anticipatory bail is not under the blanket jacket of release for an indefinite period. Anticipatory bail becomes effective at the very moment when a person is arrested, and the person is free from the arrest until the bail is canceled. Anticipatory bail validity is from the day the arrest is made to the day till which court grants permission or the day it is canceled.

Application for anticipatory bail for an offense under section 498A: There is no express provision which provides for not granting an interim release from arrest. However, the thing of consideration is the statement of reason which has to be offered. In the case of Raghuvir Saran Agarwal v State of UP[4], the anticipatory bail was granted by the High Court in case of dowry death but was without any statement of reason, the Apex court intervened and set the same aside because the High Court didn’t provide a proper reason.

CONCLUSION

Anticipatory bail is simply aimed to grant protection to the applicant who may be inducted in a false case. This power vested with the court is an extraordinary power and needs to be used cautiously, and the ultimate aim of the judicial system should be to meet the ends of justice and to protect the interest of the people.

[1] AIR 1977 SC 366

[2] AIR 2005 SC 1057

[3] 2002 CrLJ 1760 (HP)

[4] (1998) 8 SCC 617

Difference Between Police Remand and Judicial Custody

Remand implies an act of sending and keeping an accused in the judicial custody particularly when a trial is going on. The term Remand likewise incorporates the circumstance when custody of the accused is with police authority.

In general, there are two kinds of remands in law:

1. Police remand
2. Judicial Custody

Police remand

In general police, remand comes first out of the above two. When an accused person is sent back to the police station for further inquiry and investigation, it is called police remand.

Judicial custody

Judicial remand often called remand refers to a procedure whereby the higher court sends back cases to the lower court for further action.

It also refers to a situation where the accused is sent back to jail for further investigation.

Purpose of Remand

• The original purpose of remand in custody was to ensure that the accused attends the court as required
• Protection of victims
• The final disposition of matters for which accused is remanded in custody.

Some legal cases are not solved in the trial courts and the defendants have to go to the appellate court. But if the appellate court finds that there are some mistakes made in the trial court, it again sends the case to the trial court and the case is said to be a remanded case.

A very common mistake made in the trial court is that sometimes it does not allow some evidence. Then the appellate court ordered the trial court to allow the evidence and the person who is going to be free is remanded for further few days of 14 or 15 days which can be extended to 60 days.

In India, the Code of Criminal Procedure deals with judicial and police custody under Section 167.

When a man accused of an offense (here the word offense by and large means a non bailable offense as in bailable offense he would  be discharged on bail, so no need of arresting him through detention) is arrested and kept an officer in charge of the police station feels that the investigation process cannot be finished in 24 hours of such arrest and detainment, at that point he will forward to the nearest judicial magistrate (competent to take cognizance of the offense or not) or in his absence to an executive magistrate the transmitting of a duplicate copy of case diary and the forwarding of the accused in person. In any case, regardless of whether it is a non bailable offense then additionally if the officer in charge for the police station sees no reason of forwarding the accused to the magistrate reason being the insufficiency of proof or evidence against him, only then he can release such accused on bail himself and later on can file closure report with the magistrate.

Now when such accused creates the impression that is, surrenders before the magistrate or brought before such magistrate after arrest and confinement or detention, at that point such magistrate can either send the accused to judicial custody that is to the prison jail.

In strict legal theory, people held on remand are held only to guarantee that they are present for their trials. The relevant provision of the ICCPR (International Covenant on Civil and Political Rights provides that remand and sentenced prisoners should be held in separate facilities. Despite what remand prisoners themselves may feel, the law does not regard their confinement as punishment, and therefore allows them a fuller set of rights – and imposes fewer restrictions on them – than it does in the case of convicted prisoners. If they are eventually convicted, the time spent in prison on remand may be credited as part of the sentence served.

Read Also: All About Retirement Age of Judges in India

In general, remand prisoners are held in special remand facilities or in different sections of prisons from those of other prisoners. There may, in practice, be a degree of intermingling between remand and convicted prisoners, especially when the prison system is overcrowded. Intermingling can also occur, as appropriate, in specialist prison units, such as for young adults and vulnerable prisoners, to cater to the needs of the individual prisoner.

Recently, in India the CEO and editor-in-chief of Samachar Plus was on Monday sent to judicial remand till November 8 for allegedly conducting sting operations on prominent persons in Uttarakhand with the intent to extort money, officials said.

Umesh Sharma was arrested from his Ghaziabad residence on 28 October after a journalist with the channel accused him of forcing him to conduct sting operations on prominent politicians in Uttarakhand, including a former CM.

“He was produced before the Additional Chief Judicial Magistrate in Dehradun on Monday,” Dehradun Senior Superintendent of Police Nivedita Kukreti said.

The channel, headquartered in Noida, has a presence in Uttarakhand and UP.

This article aimed to look at the meaning of judicial remand, the difference between police and judicial remand, cases of judicial remand and different aspects of judicial remand.

Section 384 of the Indian Penal Code : Extortion

Section 384 IPC defines the punishment for extortion as

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

In other words, if someone is found guilty of extortion, he might get imprisoned for a term extending up to 3 years, or might have to pay a fine, or both. For a better understanding of Section 384, we first need to understand what extortion exactly is.

Section 383 of the IPC defines Extortion as-

Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishon­estly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits “extor­tion”.

For an action to be considered as extortion, the following conditions should be satisfied-

1. Intentionally putting the person in fear of any injury
2. for the purpose of dishonestly inducing the person
3. to deliver to any other person any valuable security.

The fear of injury does not necessarily have to be of bodily harm, it could be fear of injury to a person’s reputation or property, it could be fear of injury to his loved ones. This fear is inflicted to the extent that the person agrees to deliver valuable security. The element of free and voluntary action (which constitutes consent) is absent.  Section 44 of the IPC defines Injury as, any harm whatever ille­gally caused to any person, in body, mind, reputation or proper­ty. Extortion is considered a serious or criminal offense.

For instance, A threatens to kill the son of B, if he fails to provide him with a blank signed stamp paper. A has induced B to give him the blank signed stamp paper. A has committed extortion. A could be punished with imprisonment for a term up to three years, or with fine, or with both. Another example could be, A threatens to fire B from his job if he doesn’t cast his vote for the CEO position to A. A has committed extortion.

The offense under section 384 of the IPC is a cognizable offense, which means that the police has the authority to arrest the person without a warrant. It is also a non-bailable offense i.e bail is a matter of discretion of the court. The offense of extortion is also non-compoundable. Compounding is a process where the victim and the accused agree to some compromise in order to avoid trial. There are some offenses which are so grave and serious in nature that they can not be compounded, except in certain situations where the case can be quashed by the supreme court or any high court. Since these cases are filed by the state i.e. police, the question of entering into a compromise doesn’t even arise. A full trial is conducted in the respective court and judgment is provided at the end of the trial.

Case laws-

In the case of Chander Kala v. Ram Kishan [AIR 1985 SCC 1268], the complainant (Smt. Chander Kala) was working as a teacher in a Govt. Middle School and the respondent (Ram Kishan) was the headmaster of the same school. The accused, after a series of events, called the complainant to his house and threatened to attack her modesty if she refused to sign three blank papers. And when she did, he threatened that he will use those signed papers to blackmail her by recording any statement on the papers, if she refused to act according to his wishes. The Supreme Court held that the accused had committed an offense under Section 384.

In the case of State Of Karnataka vs Basavegowda Alias Chandra [1997 CriLJ 4386], the accused husband took her wife (the complainant) to the forest under the pretext of going for the wedding of a friend. He then threatened to kill her if she didn’t hand all of her ornaments to him. After she handed him all her ornaments, he assaulted her with a big stone and his fists and ran away when saw two men coming. Though he wasn’t held guilty for robbery, he was punished for the offense of extortion under section 384.

References-

1. Indian Penal Code
2. Code of Criminal Procedure
3. AIR 1985 SCC 1268
4. 1997 CriLJ 4386

Major Functionaries under the Code of Criminal Procedure

There are five major functionaries under CrPC

1. Police
2. Prosecutors
3. Court
4. Defense Council
5. Prison Authority and Correctional Services

In this particular article, you’ll be reading about the above-mentioned functionaries, their roles and functions.

POLICE

It is the duty of the central and state governments to provide for the police setup and their organizations. But both the governments have failed in the reorganization of the police setups according to the needs and the changing society. Later in the case of  Prakash Singh vs. Union of India (2006) in which the Supreme Court laid down guidelines for the reorganization of the police.

Role of Police under CrPC

• The role of police starts with writing the information about the crime and registering it as an FIR.
• Either before or after registering FIR, the police have a duty to reach the scene of offense for the purpose of a preliminary investigation, protection of the crime scene, the arrest of the accused or the suspect.
• Duty to take the offense to the cognizance of the court.
• On the arrest of the accused/suspect, it is the duty to produce before the court within 24 hours.
• Duty to investigate into the offense and file the charge-sheet before the court.
• Duty to assist the prosecution and the court in the administration of justice.

PROSECUTOR

This word is defined under S-2 of CrPC it means the prosecutor is an officer appointed by the appropriate government to prosecute the offense in a case. Section 24&25 of CrPC deals with the appointment of prosecutor and their duties.

The appointment shall be by the central/state government, through a recruitment agency, directorate of prosecutions. This agency is the governing body for the prosecutors for the purpose of appointments, transfers, regulating, etc. this directorate is a statutory and is empowered u/s 25(A) of CrPC initiated by the criminal law amendment act 2005.

Kinds of Recruitment of The Prosecutors

There are two kinds of the recruitment process;

• Thorough Exam

There are certain kinds of prosecutors appointed through a recruitment test conducted and appointed at the lower judiciary i.e. in the court of judicial magistrates. The public prosecutors in the lower judiciary are called as assistant public prosecutors Grade I and Grade II (government servants).

• Term Based

There are prosecutors who are appointed in the middle level of the judiciary at the session court/addition courts of sessions and an assistant court of sessions. The appointment of the prosecutors shall be from a panel of advocates prepared by the district collector. The term of the office for such public prosecutors shall be 4-5 years.

COURTS

The setup and organization of criminal courts in India are of 2 types on the basis of the nature of the area i.e. District and Metropolitan areas.

In District

The criminal courts and their setup in district areas in at 3 levels:-

1. At the lower level of the judiciary the courts are called, courts of Judicial Magistrate which are of 3 types:-

• Judicial magistrate first class
• Judicial magistrate second class
• Special magistrate court

2. At the middle level of the judiciary, sessions are the unit and each district may be considered as one session or sessions may consist of two or more districts, the courts at the sessions level includes:-

• Court of sessions(principal court of sessions)
• Additional courts of sessions
• Assistant courts of sessions
• Special courts (designated courts)

3. At the higher level of the judiciary, there are 2 important courts having criminal jurisdiction i.e. high court and Supreme Court.

Though high court and Supreme Court are vested with the jurisdiction in criminal cases, they are only courts of appellate jurisdiction.

Metropolitan areas

The courts at the session’s level are referred and called metropolitan courts and they are of 2 types:-

1. Metropolitan session courts
2. Metropolitan magistrate courts

Chief Judicial Magistrate/Chief Metropolitan Magistrate Supervisory authority or administrative authority of all the magistrate in sessions/division or metropolitan areas.

DEFENSE COUNSEL

In India, we follow the Anglo-Saxon system also called adversarial, under which the state shall be represented by the prosecution and be accused by a defense counsel at is choice and cost. Where the accused is unable to engage a lawyer for his defense counsel for the accused at the cost of the state. Such defense counsel is called a state brief (S-304 CrPC).

PRISON AUTHORITIES AND CORRECTIONAL SERVICES

After the trial and arguments in the criminal cases, it is the time to deliver the judgment by the court the two possibilities of the judgment in a criminal case are correction or acquittal. On the proof of guilt of committing the crime, the accused is liable to be corrected and sentenced with imprisonment or for the default of payment of fine imprison the offender will be sent to the prison. The prison administration authority shall be according to the prison act 1881.

Culpable Homicide

Introduction To Cupable Homicide

Homicide is the act of one human killing another. A homicide requires just a volitional act by someone else that results in death, and along these lines, a homicide may result from accidental, negligent, or careless acts regardless of whether there is an intent to cause hurt. Culpable Homicide is the killing of one individual by another with the intention of causing death.

In India, Culpable Homicide is mentioned in Section 299 of the Indian Penal Code.
Section 299:” Culpable homicide.— Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offense of culpable homicide.”

Components of Culpable Homicide

• Actus Reus (Act)
• Mens Rea (Intention)

Essentials of Culpable Homicide

1) Causing the death of an individual.

2) Such death must be caused by an act

i. With the intention of causing death; or
ii. With the intention of making such bodily injury as is likely reason death; or
iii. With the information that the doer is likely by such an act to cause death.

The fact that the death of an individual is caused isn’t sufficient. Except if one of the mental states referenced in the element is available, an act of causing death can’t add up to Culpable Homicide.

Types Of Culpable Homicide

I. Culpable homicide amounting to murder.

II. Culpable homicide not amounting to murder.

Culpable homicide is the Genus, and murder is the Species. All murder is culpable homicide yet not the other way around, it has been held in Nara Singh Challan v/s State of Orrisa (1997). Section 299 can’t be taken to be meaning of culpable homicide not amounting to murder. Culpable homicide is the genus. Section 300 characterizes murder which implies murder is the species of culpable homicide. It is to be noted here that culpable homicide not amounting to murder isn’t characterized independently in IPC, it is characterized as a part of Murder in section 300 of IPC.

Section 300 – Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or

Culpable Homicide isn’t adding up to murder:

Special case 1 to 5 of s300 of IPC characterizes conditions when culpable Homicide isn’t amounting to murder:

I. Provocation
II. Right of private defense
III. Public servant surpassing his power.
IV. Sudden fight
V. Consent

Special case 1-culpable homicide isn’t adding up to murder if the guilty party, while deprived of self-control by grave and sudden provocation, caused the death of the individual who gave the provocation or causes the death of any individual by accident or mistake.

The above exemption is liable to these provisions:-

1. The provocation isn’t looked for or intentionally provoked by the guilty party as a reason for killing or harming any individual.
2. The provocation isn’t given by anything done in compliance with the law, or by a public servant in the legal exercise of the powers of such a public servant.
3. The provocation isn’t given by anything done in the lawful exercise of the right of private defense.

The provocation must be grave: maintained in Venkatesan v/s State of Tamil Nadu (1997)

The trial of the grave and sudden provocation is whether a reasonable man having a place with the same class of society as the accused, set in the circumstance in which the accused was set would be so provoked as to lose his self-control.
In India, words and gestures may likewise, in specific situations, cause grave and sudden provocation
The mental background made by the last act of the victim might be taken into consideration in deciding whether the consequent act caused grave and sudden provocation for committing the offense.

Section 300 likewise characterizes the situation when culpable homicide turns into the murder which is punished under Section 302. Under the following 4 conditions:

The intention of causing death-

I. Culpable homicide turns into murder if the act by which the deaths is caused is done with the Intention of Causing death or
II. In an act done with the intention of causing such bodily injury as the offender knows to probably make the death of the individual whom the harm is caused, or
III. In the done with the intention of causing bodily injury to any individual and the bodily injury intended to be inflicted is adequate in the ordinary course of nature to cause death, or
IV. On the off chance that the individual committing the act realizes that it is so imminently dangerous that it must, most likely, cause death or such bodily injury as is probably going to cause death, and commits such act with no reason for acquiring the danger of causing deaths or such injury as previously mentioned.

Whoever commits culpable homicide not amounting to murder will be punishable with
(i) imprisonment for life or imprisonment of either up to ten years, and will likewise be subject to fine if the act by which the death is caused is with the intention of causing death, or of such bodily injury as is probably going to cause death; or
(ii) with imprisonment of either depiction up to ten years or fine or both, if the act is done with the knowledge that it is probably going to cause death, however with no intention to cause death or to make such bodily injury as is likely reason death.

The field of Culpable Homicide is tremendous and is of practical utility. It incorporates all felonious homicide not amounting to murder. It is fundamentally a killing which the killer neither intended nor anticipated as likely to occur; it is an unintentional, accidental felonious killing. There have been numerous cases in which this field of law has been utilized and correctly applied too. The Sections 299, 301, 304, 304A deal with the diverse angles covered under this subject in an elaborate way every one of the provisions are not exhaustive and there is a need to put into application a considerable lot of the recommendation of the Law Commission for better organization of Justice since it would help in the evolvement of this subject with time.

Section 120b IPC – Criminal Conspiracy Definition And Punishment

Introduction

A conspiracy is an agreement between two or more persons to commit an offense. The mere meeting of mind of the parties to commit an offense is a conspiracy.

Initial Position

Originally, the IPC consisted of only two provisions for punishing the offense of conspiracy. First, the provision of section 107, which made a conspiracy by the way of abetment, punishable. The others are specific provisions involving offenses which are included conspiracies to commit them. As for example,  Section 310 (in the definition of thugs), Section 400 (belonging to a gang of dacoits), Section 401 (belonging to a gang of thieves), etc.

Current Position

The position, however, changed with the Indian Criminal Law Amendment Act of 1913 (8 of 1913).

Chapter V-A of the Indian Penal Code (45 of 1860) deals with ‘Criminal Conspiracy’.  Legislature inserted it in the aforesaid amendment. It consists of two sections 120A and 120B. Section 120A gives the definition of criminal conspiracy. Section 120B deals with punishment for committing the offense of criminal conspiracy.

The law of conspiracy covers the following:

(i) Conspiracy as a Substantive offense i.e. conspiracy is in itself an offense (ch V-A: ss 120A and 120B);

(ii) Conspiracy as a form of abetment (ch V: s107 Secondly);

(iii) Conspiracy to wage, attempt to, or abet war against the Government of India (ch VI: s 121A), and

(iv) Involvement in specific offenses (ch XVI: ss 310 and 311; ch XVII: ss 400, 401 and 402).

Criminal Conspiracy

An offense occurs when:

a) Two or more persons agree to do an illegal act.

b) Two or more persons cause to be done an illegal act.

c) If two or more persons agree to do a legal act by illegal means.

d) Two or more persons cause to be done a legal act by illegal means.

An agreement is made between two or more persons to commit any one of the aforesaid offenses, is called criminal conspiracy.

Moreover, an act done in pursuance of this agreement is part of the criminal conspiracy. Hence, it is immaterial that the act done is the ultimate object or merely incidental to the object.

Thereby an agreement for committing an offense, two or more persons agree to do an illegal act or cause to be done an illegal act is amounting to criminal conspiracy even though the object of the agreement is not fully accomplished.

Section 120A of the Indian Penal Code (45 of 1860)

A plain reading of s 120A gives ingredients of Criminal Conspiracy as follows;

• There should be two or more persons.
• There should be an agreement between themselves.
• The agreement must be to do or cause to be done:

(a) an illegal act; or

(b) a legal act by unlawful means.

Moreover, in the case of a conspiracy to commit an illegal act, the mere agreement is sufficient to impose liability; however, in the case of conspiracy, to do a legal act by illegal means, there ought to be some overt act which is committed by parties to the agreement.

Punishment of Criminal Conspiracy

Sec 120B deals with the punishment of criminal conspiracy. This section is in two parts i.e. sec 120B (1) and 120B (2).  Any person, whoever is a party to a criminal conspiracy to commit an offense is punishable under this section.

Sec 120B (1) deals with heinous and grievous offenses. However, sec 120B (2) deals with minor criminal offenses.

Firstly, we will discuss sec 120B(1) and then sec 120B (2).

Section 120B (1) of the Indian Penal Code

Particularly, this section deals with the conspiracy of three types of offenses. They are as follows:

• an offense in which punishment is death;
• an offense in which punishment is life imprisonment;
• or an offense in which punishment is rigorous imprisonment for a term of two years or upwards.

According to Section 120B (1), when there’s no expressed provision regarding the conspiracy of aforesaid offenses in the code then this section is applicable. Further, it says that the parties who commit any of the aforesaid offenses are punishable in the same manner as the abetment of such offenses.

Section 120B (2) of the Indian Penal Code

This section deals with the criminal conspiracy of remaining offenses. Generally, it covers minor criminal offenses. In other words, we can say it covers the conspiracy of those offenses which is punishable with less than 2-years of imprisonment. Thus, the section imposes nominal punishment i.e. imprisonment for the term not exceeding 6 months.

Thus, section 120B (2) says that a person who is the party in criminal conspiracy other than section  120B  (1), shall be punished with

• either imprisonment for the term of not exceeding 6 months
• or with fine or both

Conclusion

Any agreement between two or more person to commit an offense is a criminal conspiracy. For the purpose of punishment, s 120B divides criminal conspiracies into two classes. A party to a conspiracy to commit a serious offense, is, in the absence of an express provision in the IPC, punished in the same manner as if he had abetted the offense. Conspiracies to commit any other offenses punishable with imprisonment for a term up to six months with or without fine or both.

Section 448 of IPC- Punishment for House Trespass

Section 448- Punishment for House trespass-

“Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.”

Before going to House trespass, we need to know what is trespass. And, in what circumstances trespass is criminal trespass. Ordinarily, trespass is a civil wrong for which a defendant has the right to sue. Lord Macaulay, defined ” trespass is every usurpation, however slight, of dominion over property’. But only when it includes criminal intention, it becomes Criminal trespass. Whereas, Section 441 on Indian Penal Code defines criminal trespass.

Section 441- Criminal Trespass

“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 only difference between trespass and criminal trespass is Intention. A trespass with an intention to commit an offense is criminal trespass. The object of Section 441 is to protect the possession of the property. This section is concerned with possession, but not with ownership Sahebrao Kisan Jadhav Vs State of Maharashtra[1].  It is not relevant if the person has entered the property lawfully or unlawfully. Lawfully entering a property and staying there unlawfully with an intention to commit an offense, is criminal trespass.

Further, Section 447 lays down the punishment for Criminal trespass. Punishment for Criminal Trespass is imprisonment of up to 3 months or fine up to Rs.500 or both.

Read Also: Top 10 Criminals of India – You Don’t Know

Section 442- House trespass

“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”.

The offense of house-trespass is an aggravated form of criminal trespass. The House trespass must have all the ingredients of criminal trespass. moreover, in addition to the element of criminal trespass, the house-trespass occurs at entering or remaining on the property. Here, Property includes any building tent, vessel, place of worship or any place for Human Dwelling.

The building here constitutes any place which can give protection to any human or any person dwelling inside it. Or any property placed inside it. The mere surrounding of any place by fencing or any wire of any opens space does not construe building. And trespass upon such space is not House-trespass.

However, in order to attract House trespass, an illegal entry upon the premises is necessary. A person does not commit house-trespass if he enters the property with permission or consent.

Rajmogali Ashayya Arkal and others. vs. Govind Hanumantu Nandlal and Anr.[2]

Punishment

As stated earlier, House trespass is an aggravated form of criminal trespass. So the punishment is also more than ordinary trespass. Punishment for House trespass can extend up to one year or fine up to 1000 or both. Moreover, this offense is compoundable, bailable and cognizable :

• Compoundable Offence

Those offenses in which compromise can be done at the instance of the party, are compoundable in nature. Hence, a compromise is available in the offense of House trespass. If the aggrieved party gives consent, without any force or undue influence, to compromise. In such a case, they can avoid a trial.

• Cognizable offense

In Cognizable offense, police have the authority to arrest the person without any warrant. Also, police can start an investigation without the order of the court. Here, police can arrest a person on the mere complaint of aggrieved and/or founding accused on the property. Police do not require any warrant or order from the court.

• Bailable Offence

In an offense, police have the authority to release an offender on bail. The offense of House-trespass in enumerated under the list of Bailable offences. Hence, a person accused of House-trespass has the option to get bail. One can provide for security to get the bail.

Conclusion

A person commits House-trespass upon entering any property of others with a criminal intention. For entering, it is not necessary to enter completely, but any part of the body is sufficient to construe House-trespass. The Offence is Compoundable as it is easy to compromise outside the court and the nature of the crime is less serious as it does not harm the body of the individual. Whereas, Cognizable as the police requires to act as soon as possible on the complaint. If the police have to wait for the warrant it will be too late.