The house-trespass is that the person should take

The essential difference between house-trespass and lurking house-trespass is that the person should take some active precautions or effective steps to conceal his identity or presence from the person who has a right to prevent that person from entry or who has a right to throw him out upon entry.

Section 443 requires the following ingredients— i) Trespass (Section 441) ii) The trespass being of the special kind designated as house- trespass; and iii) That trespass being made in a surreptitious manner, called ‘lurking’. The collocation of the words “exclude or eject” is intended to convey a sense more or less similar, but one word is intended to supplement any defect discovered in the sense conveyed by the other. Primarily, however, the word ‘exclude’ would suggest unlawfulness of the initial entry, while the word ‘eject’ should apply to the expulsion of a person whose previous possession was not unlawful. A person having no right to exclude may acquire the right to eject, as in the case of a lessee ejected on breach of condition.

Since in all lurking house-trespass, there must be house- trespass, which requires entry into or remaining in a building it follows that if the entry was upon the terrace or roof of a house the accused could not be convicted of house-trespass, and a fortiori of lurking house-trespass, though he might be of criminal trespass punishable under Section 447.


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