Can You Kill Someone Who Trespasses Your Property?

Trying to protect one’s property when it is in danger is a natural reaction of a human being. They may also use force for the same but to what extent is it legal? This article shall answer this question.

Trespass is the intentional unreasonable interference with one’s property or person. In simple words, trespass is using or entering one’s property without his permission. Trespass is usually a tort, but if someone enters the property with criminal intentions, it is treated as criminal trespass. Hence, trespass can be punished under both civil and criminal law.

Essentials to call it a trespass are -

1. Entry – There must be a physical entry into the property.

2. The entry must be without the owner’s consent.

3. An unauthorized person must make the entry. E.g., police officers entering into anyone’s premises cannot be considered trespass as they are authorized by law.

There are mainly three types of trespass -

1. Trespass to Person

2. Trespass to Chattel (movable property)

3. Trespass to Land

An individual has certain rights to protect his property under the Indian Penal Code, 1860. These are the right to private defense, which extends to both person and property. The general law states that an individual in the exercise of his right of private defense must use 'reasonable force.'

The term ‘reasonable force’ refers to the amount of force that is necessary to defend his property, and it must be in proportion to the ‘threat.’ For example, if a person merely enters your land, you cannot use any weapon against him. But if intruders possess weapons, you can use a weapon to defend your property.

Section 97 of IPC states that “Every person has a right to defend the property, whether movable or immovable, of himself or any other person, against any act which is an offense falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.” But the force used must not exceed the threat. An individual cannot use force against a trespasser if he does not cause any reasonable apprehension of death or grievous hurt.

The right of private defense of property extends to causing death as mentioned in Section 103 of IPC in case of:

1. Robbery

2. House-breaking by night

3. Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;

4. Theft, mischief, or house-trespass, under such circumstances, as may reasonably cause apprehension that death or grievous hurt will be the consequence if such right of private defense is not exercised.

The essential conditions of the right to private defense are:

1. There must be reasonable apprehension of death or grievous hurt.

2. The force used must be proportionate.

3. This right can only be exercised if there is no time to call the police officials.

Hence, you cannot kill someone for merely trespassing into your property.

In Mohinder pal jolly vs. State of Punjab, the accused shot one of his workers throwing brickbat in the factory. The worker died as a result of this. It was held that there was no assumption of threat present and hence his use of force was excessive.

In Jassa Singh vs. State of Haryana, it was held that the right of private defense of the property will not extend to the killing of a person who committed the act of trespass in open land.

References:

• Private Defence under Law of Tort (ipleaders.in)

• Trespass: Meaning, Nature, Types, Defenses and Case Laws - iPleaders

• theprofessionalsecurityofficer.com/reasonable-force-how-much-is-too-much/

• Mohinder Pal Jolly vs. the State of Punjab, 1979 AIR 577, 1979 SCR (2) 805

• Jassa Singh vs. the State of Haryana, criminal appeal no 1404-05 of 1999 decided on 8 January 2002

For a more detailed understanding, refer to the" Jassa Singh & Ors v. State of Haryana" case study by clicking the case below.

Jassa Singh & Ors v. State of Haryana