Dr.S.N.Vignesh Guest
Asked July 25, 2016

Trespassing and Threatening

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A group of people are compelling to provide a piece of land for drainage from our own land to an individual. They tresspass into the land and threaten my relations. Only my aunts (two ladies) with a Differently disabled kid is living in the house, are regularly abused and threatened with sickle and other materials. This causes a heavy mental torture to the differently disabled kid and life threatening to my aunts. Kindly suggest the Sections i can apply for legal proceedings.

Answer 1

The following are the legal provisions that you can take the help of, in your case:

 

A. Trespassing

Trespass is a physical interference by a person in a property belonging to another person. Section 441 of Indian Penal Code defines ‘criminal trespass’ as ‘Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property…’ 

Punishment for this is provided under Section 447, which includes imprisonment for upto 3 months; fine upto Rs. 500 or both.

You will have to have these elements in your case, to be successful in proving criminal intimidation:

a. Entry of these people on your property;

b. Even if such entry is lawful, that they unlawfully remained on your property;

c. Such entry or unlawful remaining was with the intent to commit offence, annoy or intimidate you/the people who ahd legal possession of this property (your aunts).

Note that the entry need not be forceful; it is enough if it is without permission.

Your remedies can be:

i. Injunction from the court restraining the trespasser from causing any further damage;

ii. Damages: That is compensation for all the losses you have incurred due to the trespass.

 

This is a COGNIZABLE, NON BAILABLE OFFENCE.

 

You can also look into the possibility of House Trespass under Section 442 of the IPC (Also read Sections 449, 450, 451, 452 to see if the actions of these people are mentioned in these sections.)

This is also a COGNIZABLE, NON BAILABLE OFFENCE.

Thus, you can lodge a police complaint under Sections 441 and 442 (and other sectioned mentioned, as applicable to your situationof the Indian Penal Code.

 

B. Criminal Intimidation.

Section 503 of the IPC tells us that whoever threatens another with any injury to him, his reputation or his property, or to the person or reputation of any one in whom he is interested (i.e. your aunts), with intent to cause alarm to that person, forcing them to do something which they are not legally bound to do (in your case: providing the land for drainage), using threats, commits criminal intimidation.

Section 506 provides the punishment for criminal intimidation with imprisonment which may extend to two years, or with fine, or with both.

If the threat are to cause death or grievous hurt, or to cause the destruction of any property by fire, or to carry out an offence which is punishable with death or imprisonment for life or seven years, or to impute unchastity to a woman, then the punishment can be extended to seven years, or with fine, or with both.

However, please note that this is a NON COGNIZABLE OFFENCE. In a Non-Cognizable Offence, the police will require the permission of the court to register a case or investigate. The accused cannot be arrested without a Warrant and the offence is bailable.

If you go to the police station to file a complaint, as per Cr. PC, the Police Station is required to record an abstract of such complaint in the General Diary. They will then advise you to file the complaint in the concerned court as police is not empowered to initiate action in such matters without the directions of the court.

The judicial process can be started by filing a private criminal complaint before the competent court, under Section 190 of the Cr.P.C.

Note that if this crime has actions that are cognizable as well as non-cognizable, then the whole crime can be termed as cognizable, as was recently held by the Andhra Pradesh High Court.[1] This was based on the logic in an earlier Supreme Court decision where the court said that “if the information discloses a cognizable as well as a non- cognizable offence the police officer is not debarred from investigating any non-cognizable offence which may arise out of the same facts. He can include that non-cognizable offence in the charge-sheet which he presents for a cognizable offence.” [2]

However, this will depend on whether the actions committed against your aunts and the child are, largely, cognizable or not. It seems from your case that this crime is made of most cognizable offences. However, since we do not have the complete picture, like details of other possibly criminal actions, it is best if you take the call, after looking into all the actions of these people. 

 

You can find a list of offences here and see if the ones carried out against your aunts are cognizable or non-cognizable.

 

C. Word, gesture or act intended to insult the modesty of a woman:

Under Section 509, anyone intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.

This is a COGNIZABLE OFFENCE, BAILABLE OFFENCE. So, if these men have carried out any of these actions, you can go ahead and File an FIR at the appropriate Police Station. You can find the steps to file an FIR at this link. This link also provides information on what to do and what not to do during filing an FIR.

 

 

 

 

[1] http://www.newindianexpress.com/cities/hyderabad/Crime-is-Cognizable-Even-If-It-Consists-of-a-Non-cognizable-Offence-Rules-High-Court/2015/01/05/article2604169.ece; Judgement Available at https://indiankanoon.org/doc/82493344/

[2] Pravin Chandra Mody vs State Of Andhra Pradesh  (1965 AIR 1185, 1965 SCR (1) 269) Available at https://indiankanoon.org/doc/320814/

 

 

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