Section 442 of the Indian Penal Code, provides that,
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”.
Explanation.—the introduction of any part of the criminal trespasser’s body is entering sufficient to constitute house-trespass.”
And, Criminal Trespass defined as,
“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”.”
House, trespass as described in Section 442, Indian Penal Code, and made punishable as such in Section 448 is an aggravated form of trespass and the prosecution besides proving all the ingredients of criminal trespass must further prove that the trespass was committed upon in the ”building, tent or vessel” used as a human dwelling or as a place of worship or for the custody of property.
What defines a ‘Building’?
In the case ‘Dal Chand v. State (1964)’, The Rajasthan Court while considering the question whether a tin-shed can be considered as building for human dwelling or a place for custody of property, said that,
“Mr. Kasliwal relied upon the observation made by Lord Esher in a English case Moir v Williams, (1892) 1 Q B 264. In that case Lord Esher said that the ordinary meaning of the word ”bailding” is ‘an enclosure of brick or stone-work covered in by a roof.
Mr. Kasliwal further submitted that this dictum of Lord Esher has been referred to with approval in several Indian cases. As I look at the matter, the description of a building given by Lord Esher only indicates a rough and a broad test in relation to the conditions then prevailing in England.
The word ”building” in my opinion, cannot have a fixed connotation and it must vary from country to country and from place to place according to the climatic conditions, availability of materials for building purposes and the habits and notions of the people with regard to their residence.
The difficulties in adopting Lord Esher’s dictum as a test of universal application was very prominently met out by Malik J. in Makkhan v. Emperor AIR 1945 All 81. The learned Judge in that case observed as follows:
‘In Indian houses generally there is a court-yard which is not covered. It may be a matter of some difficulty in such cases to say that when a man commits criminal trespass and enters the court-yard of the house, he is not guilty of ‘house trespass.’ Moreover, there may be cases where a man may be living in a house the roof of which has fallen down, but he has put up some sort of a shelter inside within the boundaries.
In such cases too it may be difficult to say that the man has not been guilty of ‘house trespass’ simply because the roof of the house has fallen down. As I have already said, it would depend on the facts of each case whether the trespass has been committed of a building used for human dwelling as to come within the definition of the word house trespass’.
I entirely agree with the observations extracted above. I further express my concurrence with the views expressed by Srinivasa Aivangar J., in Lakshmana Koundan v. Emperor AIR 1927 Mad 343. Said the learned Judge;
‘The expression ‘building ‘ more especially having regard to the expressions ‘Tent’ and ‘Vessel’ that follow must be regarded as indicating some structure intended for affording some sort of protection to the persons dwelling inside it or for the property placed there for custody.
Any structure which does not afford any such protection by itself but merely serves as a fencing or other means of merely preventing ingress or egress cannot make the place a building or a house within the meaning of either of those two sections.
The question what constitutes a building must depend upon what is ordinarily understood by that term. Thus, a question whether a particular structure is a building must in an ultimate analysis be a question of fact to be decided on the evidence and materials of the case.”
Then, the further requirement of Section 442 is that the building should be used as a human dwelling or as a place for worship. The expression “human dwelling” denotes a building demarcated for use as a residence by an individual or the members of a family enjoying shelter and protection not only from the winds and the Sun but also from the unauthorised entries and Interference by strangers.
No doubt, the primary determining factor is the nature of the actual user but it must be added that the meaning of the expression should not be over stretched by unduly emphasising the actual user. A distinction must be drawn between what may be considered an ordinary and normal use than between a casual and an abnormal use and regard must be had not only to the actual user but also to the normal adaptability of the building to the purpose for which it was put to use as also to the general notions and habits of the people in relation to residence.
Further, as pointed out by Bhargava J. in Babulal v. State AIR 1952 All 146 is considering the expression “building for custody of property” a distinction ought to be drawn between the word “custody” and the word “keeping”. The word “custody”, it was observed, is undoubtedly different from the word “keeping” and it implies a sense of security which would be wanting in the case of a shed, which is only meant to provide shelter from Sun and rain ‘and which has no doors etc.
Thus the question whether a particular building is used as a human dwelling or as a place for the custody of the property cannot be determined on rigid and inflexible formula but must be considered and determined after due consideration of the nature of the actual user of the structure as also the normal adaptability of the property to a particular use as also the general notions of the people in relation to residence and custody of property. It follows that each case must be decided on its own facts and circumstances.
In the present case in the tin-shed into which the accused Dalchand entered and inflicted a blow upon the complainant is in the nature of a verandah attached to the shop in lease with the complainant. In this connection, he emphasised that the doors of the shop open in the tin-shed and that the complainant has been using the tin-shed as his office and is keeping certain articles in the tin-shed. Before determining the question of fact, it will be necessary to consider the legal position.
Now, verandah may be inner verandah or outer verandah. So far as the inner verandah in a building is concerned, no difficulty can arise and that can easily be considered as a part of the main building falling within the terms “building used as human dwelling” or “a place for the custody of the property.” With regard to outer verandah, the judicial opinion is not uniform.
The question whether a particular outer verandah answers the requirement of Section 442 should be determined on the general considerations indicated above with due regard to the actual user of the verandah as also its adaptability to use for residence or custody of property having due regard to the general notions of the people in relation to residence and custody of the property.
It has been stated that the complainant has kept a slab there and uses the tin-shed for his use as office by sitting on the slab. This, however, cannot, in my opinion be sufficient to treat the open space under the tin shed as a human dwelling house. The use, In my opinion, is casual and abnormal and having regard to the adaptability of the land, I am not prepared to treat the open land as a building used as human dwelling.
Similarly, the complainant’s suggestion that the place should be treated as a place for the safe custody of the property because he has kept a boiler in the tin-shed, cannot also reasonably be accepted. In my opinion, it will be safer to say that the boiler has been merely kept there but it is difficult to predicate that the tin-shed is a place for the safe custody of the boiler or any other property.
In the circumstances, the contention on behalf of the State that the tin-shed is in the nature of a verandah and integral part of the shop and is used as a human dwelling or as a place for the safe custody of the property, cannot be accepted and is rejected.”
Dal Chand vs The State: 1966 CriLJ 236