Trespass – Against person by gaurangi @lexcliq

Trespass Against Person
It is the causing of apprehension of unreasonable interference with one’s person and body as well as a third person and includes usage of force causing damage and impairment in the body. The trespasser, with an ulterior intention, transgresses the right of another and makes an alteration in it with the objective to cause wrongful loss or wrongful gain as the case may be. It is considered as intentional even if the wrongdoer did not know that the property belonged to another.

Assault: It is the causing of unreasonable apprehension of body injury and damage in the mind of another person and usually a prelude to a battery. It can be given effect in a way that would make certain actions and indications as suggestive of assault by another. It can be both direct and indirect. It can be carried out by the person himself or through a third person.

Here, an important factor of foreseeability causing apprehension is required as it is essential that one is able to conceive after seeing something that it is causing unreasonable fear. Section 351 of Indian Penal Code defines assault.

  • Intent
  • Apparent ability to carry out the purpose
  • Apprehension
  • Knowledge of threat

An example of foreseeability in trespass: A man directing a gun and about to trigger it, behind a person is not foreseeable to the person. This can’t be said to be an assault as there is no apprehension in the mind of that person that somebody is doing such an act which would instill fear in him.

Battery: The use of force on the person of another without lawful justification. Battery consists of touching another person hostilely or against his will directly or indirectly, however, slightly. Direct force can be like slapping a person whereas indirect force is like setting a dog behind a person or spitting on a person. Battery corresponds to ‘use of criminal force’ according to Section 350 of the Indian Penal Code[3]. What is necessary is that the wrongful act must involve physical contact.

Essentials of battery include:

  • Direct or indirect physical contact
  • without lawful justification
  • Use of force
  • It must be voluntary
  • Accidental touch or push in the market is not wrongful and does not constitute battery.

False Imprisonment: When someone’s way is restricted unlawfully from all possible directions so as to prevent him/her from moving in a direction for some period, however short, it is called false imprisonment. In the Indian Penal Code, it is defined as wrongful confinement.

Article 22 of the Indian Constitution provides for protection against unlawful arrest and casts an obligation upon the state to follow due procedure while carrying out arrest related activities[4]. Section 43, CrPC provides for arrest by a private person if the offender is a proclaimed habitual offender and is alleged to be liable for a cognizable and non-bailable offence.

Essentials: Complete restraint of liberty of person and unlawful restriction

Defence against trespass to body[5]–

Consent of Plaintiff: When plaintiff consented with the defendant on the specific act then defendant can’t be said to be trespassing if there is a mutual understanding between the parties for the act.
Contributory negligence: When there is a negligence of plaintiff included in the act, then defendant’s liability can be mitigated to the extent and compromise can be arrived at or liability can be divided.
Self-defence: A person, to protect himself from an unruly element or any other such person or incidents, can trespass on the property to preclude the act from consummation. But, proportionality and probability should be kept in mind while using the property of the plaintiff to intrude and so it is to be proved by the defendant that there was no other option with the defendant other than to intrude in the property of plaintiff.
Statutory authority: Authorities compelled by the law to carry out search and seizures and cases where consent is taken to conduct a bodily search would not be construed as a trespass on the body of a person. Entry in public places and private property used for a commercial purpose is not trespass considering the societal and public interest in mind.

Case Laws on Trespass

Sentini Cermica P. Ltd. Vs Kunchi Krishna Mohan and Ors[1]: Statutory Authority: Search and seizure on the premises of appellant do not constitute an act of trespass. It can’t be said that any procedure carried out to find the truth on the property will be construed to be an act of trespass if the act is carried out with sufficient legal backing.

Amit Kapoor Vs Ramesh Chander and Anr[1]: Merely because there was a civil transaction between the parties, it would not by itself alter the status of the allegations constituting the criminal offence.

Samira Kohli Vs. Dr. Prabha Manchanda and Anr[2]: The performance of hysterectomy and salpingo-oophorectomy on a patient was an unauthorized invasion on her person by the doctor, and it can be deduced to be an assault and consequential battery. Her consent was required as she was an adult and although the doctor acted in the best of patient’s interests and can be considered to be mitigating circumstances to reduce compensation, however, in the interests of justice, the patient is entitled to the compensation.

Rajinder Kumar Malhotra vs. Indian Bank & Ors:[3] Petitioners were licensed to operate kiosks through auction, and their right was taken away by the government corporation after the revocation of license on the expiry of the license period. Here the court made a distinction between license and lease and held that the license does not create possession and it is the discretion of the authority to revoke the license and dispossess the petitioner if any irregularity or discretionary act guides them to do so. A lease creates a possessory, inviolable and a settled right on the person to whom it is granted, whereas a license has a different footing altogether. A leased property can’t be trespassed on without lawful justification and exhortation of public need. On the other hand, a licence neither creates ownership nor possession rights in favour the person to whom it is granted. As a result, it can’t be said that the petitioner’s right has been trampled upon by trespassing on the property.

Section 9 of the Specific Relief Act protects the possession of the tenant from the deprivation by the owner even after the cessation of tenancy. However, there needs to be settled possession in it of the tenant, and this possession is juridical and is protected by statute.

Bavisetti Venkat Surya Rao v. Nandipati Muthayya[4]: Plaintiff owed a certain amount to the defendant which he was unable to pay. The defendant, in order to collect the amount thought to visit plaintiff’s house and

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