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.

10 Small But Important Things To Observe In Section 139 Of Negotiable Instruments Act

Section 139 of Negotiable Instruments act, 1881

As per the prevailing laws in India, under the Indian Evidence Act, every person until proven guilty is presumed to be innocent. Section 139 of Negotiable Instruments Act, 1881 talks about the liability of a person who is issuing a cheque which has been dishonored. Such a person is presumed to be guilty until and unless he proves his innocence. When an offense under section 138 is constituted, there is a set of admitted facts and situations where it is presumed that the person is guilty.[3]

In Krishi Vikas Kendra v Mukund[4], the amount due was paid partly by the accused. This amounts to a transaction made and the court held that the burden of proof is on the accused to prove his innocence with respect to dishonored cheque.

Under section 139 there is a presumption that a cheque presented is for a discharge of the liability of debt either partially or wholly. And until and unless the respondent purposes any purpose other than the discharge of liability, it shall be presumed under section 138.[5] The accused person cannot merely escape by saying it was only given as security and the day cheque was issued there was no liability towards the person.[6]

Once the presumption of liability is rebutted, the burden of proof shifts to the complainant to prove that the same cheque was issued for discharge of liability.[7] In the case of Rangappa v. Sri Mohan[8], it was held that if to any fact the accused has not replied in the statutory notice (notice under section 138) proves to be a merit for the complainant side.

This presumption is governed by the rule of evidence which is dealt by in section 118(a) of chapter XIII. Section 140 talks about the possible grounds which may not be allowed as a ground of defense for prosecution under section 138.

In the case of Krishna Janardhan Bhat v. Dattatraya G. Hedge[9],

“Presumption of innocence as human rights and the doctrine of reverse burden which is granted under section 139 should be balanced with respect to the facts of each case, material evidence on record and governing statutes of law.”[10]

For it is a presumption only with regard to existing debts. So, if the amount on the cheque exceeds the amount which is due to the person, then section 138 and section 139 shall not be attracted, this was held in the case of Angu Parameswari Textiles P Ltd. v. Sri Rajan and co.[11]

On the reading of this section, it is pertinent to highlight that court which is taking cognizance should be prima facie satisfied that the case is attracted under this section. The drawer of the cheque gets a chance to rebut this presumption at the trial.[12]

In the case of Kishan Rao v. Shankargouda[13], the SC held that section 1309 cannot be merely rebutted by denial. It has to be proved. The matter in controversy shall be proven to be denied with evidence.

This presumption is however not available to a money lender. He has to prove the fact of due of loan and liability through other evidence and not merely by a presumption of being guilty.[14]

The initial burden after discharged, Section 139 comes into the picture. In the case of A.B.M raja Sah v. B.M.S. Srinivas Sah[15], it was held that once signatures on the cheque were verified by the drawer and he s presumption arose and the accused couldn’t explain the liability. The court ordered the accused to pay twice the amount of the cheque and no sentence was passed.

CONCLUSION

When a cheque which was issued for discharge of liability or debt whether in whole or in part, shall under section 139 be presumed that the accused is liable for the offense under section 138 and thus the accused is under the burden of proof to prove its innocence.

[1] Added by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988

[2] Goa Plast (P) Ltd. V. Chico Ursula D’Souza, (2004) 1 BC 246 (SC)

[3] R. Sankaralingam v. Union of India; (1997) 1 BC 541

[4] (2007) 3 BC 542

[5] K. I George v. Muhammed Master

[6] K.N.Bena v. Muniyappan (2006) 4 BC 287

[7] Pine Products Industries v. RP Gupta and sons

[8] (2010) 11 SC 441

[9] 2008 (1) SCALE 421

[10] M.L. Tannan’s Banking Law and Practice in India, Student Edition, 2015

[11] (2002) 1 BC 99 (mad)

[12] Modi Cements Ltd. v. Kuchil Kumar Nandi, (1998) 1 BC 421 (SC)

[13] Criminal Appeal No. 803 of 2018

[14] M. senguttuvan v. Mahedevaswamy, (2007) 4 BC 708 (Kant)

[15][15] (2007) 4 BC 649 (Mad)

10 Small But Important Things To Observe In Attested Documents : Procedure In India

If in the case of self-attested copy, you should sign the photocopy.”

Attest is a legal term that exemplifies to the fact that a person swears word or asseverates the fact of something. Attestation may be contrived by demeanor witness to the decapitation of a document by signing his/her signature on the document. Some attestations swear to the veracity of the content of the document and others swear to the honesty of the document signatures.

• On the other hand, attestation is called Apostille when it is required on document destined for use abroad. All states require slightly two witnesses to demonstrate that a velleity was signed and self-confessed to be decisive.

• There is repudiation in some states for a hankering written in one’s own handwriting. Attest is a legal term that exemplifies to the act of a person’s swear word to or asseverates the truth of something.

Attestation may be made by demeanor witness to the decapitation of a document by signing one’s signature on the document. Some attestations swear to the veracity of the content of the document and others swear to the honesty of the document signatures.

• All states require slightly two witnesses to demonstrate that a velleity was signed and self-confessed to be decisive. There is repudiation in some states for a hankering written in one’s own handwriting.

• Attest may also refer to the giving of attestation in court by demeanor witness or asseverate something to be true, authentic, or correct. For example, in order to view convinced sensitive information, a person can be required to sign a form verifying to the fact that the person fathom the purpose of dropping this information they know that it is unlawful to use the information obtained from the database to execute a crime, discriminate against or hound any subject person of the records. When your eyewitness a document, you are verifying that, affirming and certifying that the person, whom you set surveillance on, sign the document. You are only accepting that you have seen it being signed by the person whose name is on the signature line.
• Attestation is enforced if eyewitness must be present at the inscribing of a legal document. The eyewitness then corroborates that they noticed the legal signing of the document by laying their own signatures on the document.
• The signing of the drive more often than a required bystander to authenticate, as every state needs at least two splurges to attest or the annals. The signal of the power of advocate and indoctrinated types of pledge also generally requires the observer to attest to them.

Read Also: 8 Legal Documents to Check Before Buying Property

So thereby, the witness who verify served no idea other than to verify they supported all other sections harbingering their names to the document.

• A verifying official should also attest to the legal exactness and credibility of a document by tracing his/her name on it. This is mainly done when copies of the document that needs eyewitness signs must be made.

       Documentation Clause Law & Legal Definition

1. Attestation Clause refers to a plan at the end of a gizmo where the bystander certifies that the gizmo has been carried out before them, and the way of the execution of the same.
2. It states that the gizmo has been finished in the aspect prescribed by law in the existence of the witness who places his/her signature in the nominated space. The attestation invigorates the suspicion that all the legal requirements for beheading the intention have been contented.
3. When there is an attestation clause to a velleity, endorsed by witnesses, the premise, though meager, is that the intention is in an unadorned state and it needs to be removed by some extraneous situation.
4. An attestation clause is intermittently erect in legal documents that must be endorsed if they are to be credible, for example, a desire or an accomplishment.
5. The usual attestation clause to a will is: “Endorsed, Fixed, Bring Out and stated by the above-named CD and for his last desire and testimony in the existence of us, who includes subscribed our names as the spectator peril, in the existence of the said divisor, and of each other.

Read Also: Know Some Important Features of the Indian Evidence Act

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The Truth About CPC – Code Of Civil Procedure 1908 Is About To Be Revealed.

Code Of Civil Procedure 1908’s Historical Background

Till 1859, in India, there was no uniform systematized law for the procedures to be followed in Civil Courts. In those past times, under the British standard, there were Crown Courts in Presidency towns and Provincial Courts in Mofussils.

• These Courts in Mofussil regions and Presidency towns were administered by various frameworks of Civil procedure through different guidelines, directions and special acts and those were changed on time to time premise based on conditions and needs.
• In 1859, a uniform civil procedure code was presented by passing the Civil Procedure Code (Act VII of 1859). Be that as it may, this code couldn’t fill the need as this code was not made relevant to the Supreme Courts (Crown Courts under the Royal Charter) and the Sadar Diwani Adalats (Principal Courts under the Judicial Plan by the Governor-General).
• In 1861, the Indian High Courts Act was passed and the Supreme Courts and Sadar Diwani Adalats were abolished. Then the High Courts were set up by supplanting the Supreme Courts at Madras, Bombay, and Calcutta. At that point, the Civil Procedure Code 1859 made relevant to these recently established High Courts.
• The Code of 1859 was altered consistently every once in a while and was supplanted by passing the Civil Procedure Code, 1877. This code of 1877 was revised in 1878 and 1879 and the third civil procedure Code was established in 1882, which supplanted the past code. The Code of Civil Procedure 1882 was additionally revised a few times and eventually the present code of Civil Procedure, 1908 was passed eclipsing the deformities of the Code of 1882.

a) Civil Procedure Court: Meaning and Object

The Law identifying with the practices and system to be followed in the Civil Courts is directed by the Code of Civil Procedure, 1908. The word CODE signifies ‘a systematic collection of statutes, a body of laws so arranged as to avoid inconsistency and overlapping‘.

The fundamental object of this civil procedure code is to unite and alter the laws identifying with the technique and practices followed in the Civil Courts in India. All things considered, it was cherished in the preamble of the code that it was instituted to combine and revise the laws identifying with the methodology to be followed in the civil courts having civil jurisdiction in India. The Civil Procedure Code directs each activity in civil courts and the gatherings previously it till the execution of the degree and order.

Read Also: Understanding the Civil Laws in India

The Aim of the Procedural law is to execute the standards of Substantive law. This Code guarantees fair justice by upholding the rights and liabilities.

b) Extent and Application

The Civil Procedure Code was passed in 1908 and came into power from first January 1909. The Code is pertinent to the entire nation with the exception of –
The State of Jammu and Kashmir
The state of Nagaland and the tribal regions

There is additionally a provision that the concerned state governments may make the provisions of this code pertinent to the entire or part of the State of Nagaland or such tribal regions by notification in the official gazette.

This code is pertinent in the scheduled zones of the previous State of Madras (Lakshadweep), the East Godavari, West Godavari and Visakhapatnam agencies (Now in Andhra Pradesh State).

Read Also: Civil Procedure Code,1908 – Overview of the Bare Act

Salient Features

• The Civil Procedure Code made the procedure to be followed in the Civil Courts very basic and compelling. Authorization of rights, liabilities, and commitments of the citizens are managed by this code. To state, as such, the Civil Procedure Code gives the component to the implementation of rights and liabilities.
• The Civil Procedure Code is a general law and won’t influence any laws which are as of now in force. If there should arise an occurrence of any contention with any other laws, the other law will prevail in the Civil Procedure Code. On the off chance that, in the event that the other law is quiet about a specific issue, the Civil Procedure Code will apply.
• The Civil Procedure Code has been amended a few times to address the issues and prerequisites which are dynamic and changing every once in a while. Between 1909 to 1976, the Code has been amended for more than 30 times.

Conclusion

To empower the courts to convey fair-minded and unprejudiced equity, the Code of Civil Procedure, 1908 gives straightforward and clear procedures to be trailed by the Civil Courts. If there should be an occurrence of no provisions identifying with some issue or matter, the court won’t most likely decide effectively.

Consequently the Code of Civil Procedure, 1908 consolidated the provisions for inherent powers. At the point when there is no enactment, the court, in light of a legitimate concern for equity may exercise the discretionary power by acting past the powers given to them under the Code of Civil Procedure. It is known as the Inherent powers of the Court.

The Code of Civil Procedure is one of the vital parts of procedural laws and it is the one regulating the method to be trailed by the Civil Courts in India. Despite the fact that it might have a few restrictions, however, it is as yet effective, basic, clear and empowers the courts to deliver fair-minded equity and impartial justice.

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7 Things That You Never Expect On History Of The Court Fees Act, 1870

History of the Court Fees Act, 1870 –

The Courts are institutions where the aggrieved go to seek justice. With the establishment of Courts in India, a system evolved for the payment of fees for the adjudication of cases. The rates of stamp fees leviable in courts and offices established beyond the local jurisdiction of the ordinary original civil jurisdiction of the High Courts of Judicature at Fort William in Calcutta, Madras, and Bombay and in proceedings on the appellate jurisdiction of High Courts were governed by the Act XXVI of 1867. However, within a span of about two years, it was considered necessary to make a general reduction in the rates on the institution of civil suits and to rely on the principle of maximum fee which was obtained under the previous law. Also, in order to rectify the repressive effect and to avoid future confusion between stamp-revenue proper and the revenue derived, a comprehensive bill known as the Court Fees Bill was introduced in the Legislature. Now it is known as the Court Fees Act, 1870. 

The Court Fees Act, 1870 –

The Act extends to the whole of India except the territories comprised in Part B states before the 1st of November, 1956. The Act came into force on 1st April 1970. It contains 6 chapters, 37 sections, and 3 schedules.

Types of Court Fees –

There are two kinds of court fees under the Court Fees Act –

• Ad Valorem Court fees (Schedule 1) – it means according to the valuation. Ad valorem duties are always estimated at a certain percent, on the valuation of the property as opposed to fixed or specific duties.
• Fixed or specific court fees (Schedule 2).

Computation of Court Fees –

Section 7 of the Act contemplates three types of valuation of the subject-matter of a suit.

• By valuing it according to its market value.
• By ascribing to the subject-matter an artificial value based simply on the certain fixed rule of calculation.
• By requiring the plaintiff himself to value the relief he seeks.

This section only applies where the ad valorem fee is payable.

Here is the detailed breakdown of the rule of computation of court fees in these kinds of suits –

• Suits for money – According to the amount claimed.
• Suits of maintenance and annuities or other sums payable periodically – Ten times the amount claimed to be payable in a year.
• Suits for movable property where the subject matter has a market value – According to the market value at the date of presenting the plaint.
• Suits for the possession of land, buildings or gardens – According to market value or (net profit x 15 times), whichever is higher.
• Suits for Pre-emption – If instituted under Muslim Personal Law, then according to the market value of the land.
• Suits for partition – According to the market value of the share in respect of which the suit has been instituted.
• Suits for the interest of an assignee of land revenue – Fifteen times of net profit.
• Suits to set aside an attachment of land – According to the amount for which the land was attached.
• Suits to redeem mortgaged property and suit for foreclosing – According to the principal money
• Suits for injunction or for a right to some benefit to arising out of the land – In such suits, the plaintiff shall state the amount at which he values the relief sought.

Section 35 of the Court Fees Act –

The 1[Appropriate Government] may, from time to time by notification in the Official Gazette, reduce or remit, in the whole or in any part of 2[the territories under its administration], all or any of the fees mentioned in the First and Second Schedules to this Act annexed,—The 2[Appropriate Government] may, from time to time by notification in the Official Gazette, reduce or remit, in the whole or in any part of 3[the territories under its administration], all or any of the fees mentioned in the First and Second Schedules to this Act annexed,” and may in like manner cancel or vary such order.

The Section states that the appropriate government, whether Central Government or respective State Governments from time to him, has the authority to reduce or remit fees as mentioned in the First and Second Schedules of the Act. It may in like manner also cancel or vary such an order.

CONCLUSION –

The Court Fees Act is a fiscal enactment. Its primary objective is to shield or protect the revenue of the State. It was passed to secure the revenue for the benefit of the State. Court Fee is considered as a State debt. The government has an obligation to pay court fees as much as any other party who approaches the court of law. This act also determines the jurisdiction of civil courts.

It is not mandatory for the court-fee value and the jurisdictional value to be the same. The right procedure is to ascertain the value for court fees at first and then adopt the same valuation for the jurisdiction.

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