Wanna Protect Property - Think of using criminal law

In India offenses against the property are those raising deep concern. Say you are an owner of an apartment or a house. You want to let out your property. When this thought strikes you, remember that you have all reasons to be scared. The guy whom you permit in, may go to court and say that he was a tenant or he held a license which could not have been cancelled except upon some contingency.. so on and so forth, there are thousand excuses in India law which permit such rouges to approach courts, file cases, show prima facie case, get interim relief and after doing all such things which rouges normally do, your case can hang on and on for years in our courts waiting for the justice which may never come. Did you find it difficult to believe prevalence of sad state of affair? If yes, understand that you are not aware about Indian system.

The question is : what should be done to bring these rouges to justice. Remember when two ways are possible – one criminal and another civil mode of actions, I have found that criminal mode of actions, if available for some or other reason, is far more effective then the civil course of action (remember “then”, because, even criminal cases drag on and on for years with no results forthcoming and after results you always have option of post conviction bail, revisions, appeals, writs et al to drag time).

Our law is rather absurd. If you snatch a chain, then for sure, you did a crime should you get caught. But if someone gets into your property, ensnares it for a hundred years; the other side isn’t criminally prosecuted, even if that “somebody” looses his case after years and years of contest and forcing you spend half of your precious life contesting cases.

Does this fade our hopes? I think it is not a bad idea to be an optimist. So let us think over what can we do if we have some stranger occupying our property against our wishes. Let us understand some criminal actions which we possibly can take (of course this is subjective and depends all on your individual circumstances and case). But this is a general idea which for all good reasons, I am writing to help you out. I am not discussing civil actions, because according to me they are anyway useless when you are in India. So read on..

CRIMINAL ACTIONS for offenses against property:

1. Criminal Trespass:

This is an offense defined under the Indian Penal Code – IPC. It says that whoever enters into a property of another to (1). Intimidate (2) insult and (3) annoy the person in possession of the property with such an intention commits this offense.
Remember whenever you go to court and say that such and such offense has been committed; you may attach your general notions about the offense. Say a trespass. You may feel that moment somebody enters into your property, against your wishes, he commits a trespass. May be you are right. But you need to give your accusation a finishing touch. You got to prove to the court the offense you allege in terms of the definition of such an offense given in the statute. This means, you got to tell the judge: “My Lord, this offense has been committed and ingredients of the offense as specified by law are present. So this is a fit case for conviction of an offense.”

So if I got to convey the judge while I am arguing my case favoring the complainant in a criminal complaint alleging trespass, I will try to convey that:

1. The complainant was in possession of the property;

2. The accused committed an unlawful entry or if he has entered lawfully, then I will say that he continued to stay unlawfully;

3. The accused came with an intention to commit an offense or to intimidate, insult or cause annoyance to my client.

Remember, Indian law on trespass does not make the knowledge of the consequences an ingredient of the offense. The IPC has instituted and maintained a distinction between knowledge and intention, and where the elements of the section require that a certain act has to be done with a certain “intent”, no conviction can be had unless the specific intent is found established on the evidence. The Patna High Court once observed:

“Intention is the real test. It is a state of the mind. It is to be gathered from the facts and circumstances of each case. Under Section 14 of the Indian Evidence Act, the court may presume the existence of any fact which it thinks to have happened, regard being had to the common course of natural events, human conduct in relation to the facts of the particular case. In so doing, it has to keep in mind the nature of the act of the accused and its effect on the mind of the party in possession…”

Say you go to your neighbor’s house. You know if you go there, he is likely to get annoyed. In spite of this you enter his house. This won’t be enough to convict you for criminal trespass. The court should be convinced that you entered into your neighbor’s house with an intention / purpose /aim of annoying your neighbor or you went to his house with a purpose of criminal intimidation etc. If your neighbor can prove this, it will be enough to get a conviction for criminal trespass.
e.g. Writing of love letters by a boy to a girl and delivering the same at her residence by going into the residence (if this annoys the girl) will be held to be a criminal trespass (Madras High Court in Re. Trilochan Singh).

Here all that the law requires is the presence of “intention” of committing offense. So it really makes no difference whether the offense was in fact committed or not. You simply got to prove the presence of “intention” to commit offense. That’s all.
You may ask: How do I know that there was an intention? That depends upon facts and circumstances and how well you carry your case before the court.

Say for example, in Jaladhar Behara V/s. Bhubaneshwar Padhan – the petitioners (accused) entered the newly built house during the temporary absence of the complainant and when complainant returned and remonstrated, the accused chased him out with sticks.

The court held that once the possession of the house was held to be with the complainant, the conduct of the petitioners would clearly come within the mischief of Section 441, IPC, because the latter portion of the section clearly says that even though the original entry may be lawful if a person remains there unlawfully with the intention of intimidating, insulting or annoying anybody in possession of the house he is equally guilty of that offense. Here with the petitioners (accused) chased out the complainant with sticks when he objected to their remaining in occupation of the house they clearly intimidated him and consequently when they continued to remain in the house with the criminal intention of intimidating him, the ingredients of Section 441, IPC are said to have been established.

Note that the concept of criminal trespass tries to protect the person in “possession” of the property. Ownership is not a touch-stone. What is possession? Refer to the dictionary.com for the definition of possession. I am going to tell you possession is of two types: (1). Actual Possession or (2). Constructive Possession; the concept of possession embraces both actual and constructive possession. Possession may exist in law but not in fact and such possession is termed as “Constructive”. It is a settled law that every owner of property is presumed to be in possession of it unless the contrary is proved. The word “Possession” as used in law is therefore wide enough to include not only actual and physical possession but also constructive possession. The Legislature must be deemed to have been aware of the legal connotation of the word “possession” when it used that word in the law. If the intention of the Legislature had been that actual and physical possession should be an ingredient of criminal trespass nothing would have been easier for it than to have qualified the word “possession” with the words “actual and physical”.

Sounds too much? Okay, I will tell you. This simply means that even if you are not in physical possession of your property, don’t worry. Law will presume that you have the possession, if you show that you are owner of the property. This is called “constructive possession” in the eyes of law.

Try to understand these three possibilities:

a. Unlawful entry without the ingredient of “intention”

b. Unlawfully remaining with the ingredient of “intention”

c. Unlawful entry and thereafter remaining there with the ingredient of “intention”

When you can prove the second and third one, you can convict for the offense of “trespass”. Here “intention” means intention to commit offense, criminal intimidation, insult, annoyance (as per definition of trespass)

Then it may be useful to consider the doctrine of secondary intention. Let us take an example: Mr. A is flying on a balloon. He finds that the balloon is taking him to see. Therefore he decides to drop in the fields of B which has tomatoes. A knows that by doing so he would destroy B’s tomatoes and thus annoy B. A trespasses. The doctrine of secondary intention is therefore invoked. (This doctrine is not very helpful).

A trespass made in assertion of a right must be obviously excluded from the category of the crime. This is a normal trend. However, the question cannot be generalized, for it depends upon the nature of the right asserted, the manner of entry and the trespassers belief in his rights. There are cases in which the courts have laid down that the forcible entry upon the land of another constitutes trespass without reference to the question in whom the title to the land may ultimately be found. Here are those in which some inquiry into the title is insisted upon not for the purpose of legalizing the entry but to see if the entry was bona fide.

A mere assertion of a right is not enough. This is no defense. To be a good defense the accused has to show sufficient material to reflect that he had good faith.

If a person enters into the property of another and after such entry refuses to leave the property with any of the intents mentioned in the section, he will be guilty of criminal trespass although by his entry he has succeeded in dispossessing the person who was in possession of the property at the time of entry. Thus, if a person lawfully enters into a room in the possession of another person and induces that person to go out, and on return of that person forcibly prevents him from re-entering and remains in the room with the intention of insulting or annoying that person, the second part of meaning of trespass applies.

Continuance in possession of a trespasser is a recurring wrong and constitutes a new entry every time that the true owner goes upon the land or as near to it as he dares to make a claim to it There is a fresh cause of action each time he is resisted and the persons entering subsequently with the permissions of the first trespassers and resisting the entry of the owner are equally guilty of trespass.

If anybody enters into or remains in any building used as human dwelling house with intent to intimidate, insult or annoy any person in possession of such property shall be guilty of house-trespass. The law does not require that you should be present when the trespasser has entered. All that is required is that you should be in possession.

The law says that even if you can show that there was an intention to “annoy” you, then the accused is taken as guilty of “trespass”. What does “annoy” mean? Courts have held that annoyance means molestation or vexation. Anything that would disturb the peace of mind of a person would amount to annoyance, although it may not appear to amount to physical detriment or comfort.

In addition to criminal trespass, there are other kinds of trespass viz. House trespass, house lurking, house breaking et al which pertain to the building / house.
If possible, I will try to bring them out separately in another post. Additionally I will also mention what should be contended along with the criminal trespass to make your case sound and how to examine the witnesses and cross examine opponent’s witnesses so to bring out truth in the case.