Crime & Punishment
Criminal trespass
Under section 441 of the Penal Code, a person commits criminal if he (1) enters into or upon any property in the possession of another, (2) with intent to commit an offence or (3) to intimidate, insult or annoy any person in possession of such property; or (4) having lawfully entered into or upon, such property, unlawfully remains there, (a) with intent thereby to intimidate, insult or annoy any such person, or (b) with intent to commit an offence.
Punishment: Imprisonment of either description for 3 months, or with fine which may extend to five hundred taka or with both.(Sec.447)
The following points can should be considered with regard to the offence of trespass:
(1) Trespass can only be committed in respect of immovable corporeal property, such as land, houses etc.
(2) The essence of the offence is the intention with which it is committed. It must be proved that one or other of the intents named above was present in the mind of the offender at the time of committing the trespass. A knowledge of likelihood does not form a part of the definition.
In the case of Jane Alam v. state 17 DLR (SC) 455, it was held that intent to commit the offence enumerated in the section is to be inferred from proved facts, the rule being that a person intents the natural and inevitable consequences of his own acts.
Intention which is a state of mind cannot ordinarily be proved as a fact; it can be only be inferred from the facts and circumstances established in a particular case.(Gulam Nabi v. state 11 DLR 120.)
(3) A person entering on the land of another in the exercise of a bonafide claim of right will not be guilty, though the claim is unfounded. But if the entry is made with intent to annoy, it does not matter whether it was made under a claim of right.
In the case of S Selvanayagam vs. King 4 DLR 74 it was held that entry upon land, made under a bonafide claim of right however ill-founded in law the claim may be, does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant.
(4) The property must be in the actual possession of the person other than the trespasser. It is de facto and de Jure possession that is necessary in regard to the commission of the offence.
Source: Penal Code by Dr.L.Kabir.
