House-trespass is treated as an aggravated form of offence of criminal trespass just as Section 380 makes theft in a building an aggravated form of theft. The difference between criminal trespass as defined in Section 441 and house-trespass, as defined under Section 442 is that the offence of criminal trespass is committed when a person enters into or upon any ‘property’ of any one with intent to commit an offence or to intimate or to insult or to annoy him, while house trespass can only be used as a human dwelling or any place used for worshipping or as a place for the custody of property.
The offence of house-trespass must have all the ingredients of a criminal trespass, including the intention to commit an offence, annoy, intimidate or insult the possessor of the property. In addition to that, the only other essential ingredient required is that the property (building, tent or vessel) entered into or entered upon must be used as a human dwelling or a place of worship or a place for the custody of property. However, the word ‘building’ does. Building is defined a structure intended for affording some sort of protection the persons dwelling inside it or for the property placed therein for custody.
The mere surrounding of an open space or ground by a wall or fence of any kind cannot be deemed to convert the open space itself into a building and trespass thereon does not amount to house trespass. A cattle enclosure which was merely a piece of ground enclosed on one side by a wall and on the other side by thorn hedge was not considered to be a building. A tin shed open from three sides and adjoining a shop was not considered to be a building. In order to constitute an offence under Section 442, the entry must be necessarily illegal. No one can be convicted of the offence of house-trespass if he enters into the house of another by leave or licence. To consider a building used as human dwelling, building need not be used as a place of permanent residence. Hence, school is a building used as human dwelling.
Similarly, a Railway waiting room is also a building used as a human dwelling. The explanation to Section 442 states what amounts to entry. The Explanation provides that “the introduction of any part of the criminal trespasser’s body” into the property amounts to entry, sufficient to constitute an offence of ‘house-trespass’. Thus, putting a hand on the hole in the wall of a house is not trespass, but putting hand through the hole is sufficient to constitute house-trespassing. The mere pushing in of the shutters of a door, which is not chained or locked, will be considered as house-trespass.