Published On: 30th June, 2024

Authored By: S. Phanitawya Sowmya Lakshmi
Damodaram Sanjivayya National Law University, Visakhapatnam


In the contemporary world, the primary legal framework for addressing direct and intentional acts of interference is the tort of trespass, while indirect and unintentional acts fall under the tort of Negligence. Trespass refers to the unreasonable and direct interference by one person with the rights of another person or their property, without the owner’s knowledge or lawful justification. In India, trespass is considered both a criminal and civil offence. It is further categorised into three types: trespass to land, goods, and person. Trespass to a person specifically involves unreasonable interference with an individual’s body, either by causing actual harm or by creating a reasonable fear of force. [1]This tort has evolved through various modifications and adaptations. However, intentional intrusion remains the primary element of trespass to a person. Trespass to a person is further classified into assault, battery, and false imprisonment. Various defenses against trespass to a person exist, which will be explored in this paper, along with remedies such as self-help, actions for damages, and habeas corpus.

Keywords: Trespass, Intention, Damages, Interference, Assault, Battery.


An unlawful interference with a property or space of a person. Trespass is considered any wrongful act or conduct that directly causes injury or harm to a person or property. Trespass gives the party that was aggrieved, the right to bring a civil complaint, and collect damages as compensation for the intrusion and for any harm suffered. It is an intentional tort and, in some circumstances, can be punished as a crime.[2] The unreasonable and direct interference of a person over the rights of another person or property, without lawful justification and knowledge of the owner is called Trespass. Trespass is considered a civil and criminal wrong as it can cause injury, i.e., violation of legal rights, and also damage to a person and property considerably if a physical attack takes place.

Example: If X enters the house of Y, without his knowledge and permission, Y can be held liable for trespass.


Trespass is an intentional tort and it is further classified into three trespass to person, land, and goods respectively.

  1. i) Trespass to land: Trespass to land refers to unlawful interference over the property of a person without lawful justification. Trespass to land should be a direct interference, but not consequential. Trespass to land is committed in three situations:
  2. a) Entering into the land of plaintiff.
  3. b) By continuing to stay on the land even after being asked to leave by the owner after the permission has come to an end.
  4. c) Trespassing by the interference with the land of another person.
  5. ii) Trespass to Goods: Trespass to goods means the interference with the goods by a person who are in possession of other, without any lawful justification. Trespass to goods is considered as wrong against the possession of goods. Pollock defined Trespass to person as “Trespass to goods may be committed by taking possession of them or by any other act in itself immediately injurious to the goods in respect of the possessor’s interest as by killing, beating or chasing animals, or defacing a work of art.”[3]

iii) Trespass to person: Trespass to a person signifies a violation of an individual’s rights and liberties without any legal justification. Trespass to a person arises in the case when there is an apprehension of harm or injury to a person. There should be wrongful apprehension by a person of causing harm or injury to the body of another person, which is done with mala fide intention in trespass to a person. There are three types of trespass to a person such as assault, battery, and false imprisonment.


The act of trespassing upon an individual signifies the encroachment upon their rights and freedoms without any valid legal justification. In cases where the invasion occurs unintentionally, the legal recourse lies in negligence rather than trespass. However, it is important to acknowledge that intentional invasion remains the essence of trespass, as intention serves as a pivotal factor in determining its occurrence.

  1. Intention: An act does not constitute trespass to the person unless it is performed with a deliberate aim. Therefore, intention serves as the primary factor in determining trespass to the person. Trespass to the person refers to the apprehension of unreasonable interference with an individual’s physical body or personal freedom. This encompasses the use of force that results in harm and impairment to the body, accompanied by malicious intent. Trespass can be carried out intentionally, purposefully, or negligently. Nevertheless, even if the wrongdoer is unaware of their actions, it is still regarded as intentional. In this context, the term ‘intention’ denotes the voluntary commission of the wrongdoing. The significance of intention constitutes the fundamental aspect of trespass. Trespass to the person is an inherently actionable trespass unless the defendant can establish that their actions were legally justified. In cases of direct or intentional trespass, the requirement of proving actual damage is unnecessary. However, in negligent torts, the burden of proof lies with the plaintiff to demonstrate the occurrence of injuries.
  2. Actionable Per Se: The tort of trespass to a person is considered actionable per se, indicating that the presence of harm or damage to the claimant is inconsequential. The mere act of intentional and unwarranted interference with an individual’s body and liberty, without their consent, is sufficient grounds for the plaintiff to seek legal recourse and receive compensation. As a result, there is no requirement to demonstrate the extent or nature of the harm inflicted.
  • Direct interference with the plaintiff’s bodily freedom: Trespass to a person occurs when an individual’s body is interfered with without their consent or legal justification. The term ‘direct’ is challenging to define as there is no specific criterion provided. However, a classic illustration of directness is exemplified by throwing a log of wood onto a highway. If this log strikes a passerby, it fulfills the essential element of directness. [4]However, if a person happens upon the log of their own accord, directness is not established. In the tort of battery, directness is defined as the use of unwanted force against the plaintiff. However, in the cases of assault and false imprisonment, directness is not a determining factor. Assault involves an imminent threat that instills apprehension of harm in a person, while false imprisonment entails the restriction of an individual’s liberty.


Trespass to a person can be further classified into three types:

  1. Assault
  2. Battery
  • False Imprisonment

The three types of trespass to a person share a common characteristic, which is the requirement of ‘direct interference’ for the wrong to occur. If the interference is indirect, even if it is foreseeable, or if it arises from an omission rather than an affirmative act, there would be no liability in trespass. However, the person who committed the wrong may still be liable under a different legal action. In contemporary times, trespass to a person is less focused on seeking compensation but rather serves to establish a right or acknowledge that the defendant acted unlawfully.


Assault is a tort that occurs when an individual is put in a state of reasonable fear or apprehension of immediate battery through an act that amounts to an attempt or threat to commit a battery. This includes any attempt or threat to cause physical harm to another person, coupled with an apparent present ability and intention to carry out the act. It is important to note that physical contact is not necessary for an assault to occur, but it is required for a battery. Verbal threats alone do not constitute an assault unless they create a reasonable fear of immediate force being used.[5] This can include threats made over the phone, as long as the plaintiff has reason to believe that they may be carried out in the near future. The essence of assault is the conduct that leads the plaintiff to fear the application of force against their person, regardless of whether or not physical contact occurs. Pointing a loaded or unloaded pistol at someone from a distance that could cause injury is considered an assault. 

Section 351 of the Indian Penal Code (IPC) deals with Assault.

(351) Assault – Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force on that person, is said to commit an assault.

Explanation – Mere verbal expressions alone do not constitute an act of assault. However, the specific choice of words employed by an individual can imbue their accompanying gestures or preparations with a significance that transforms them into an act of assault.

Ingredients of Assault:

  1. a) A certain level of preparation that poses a potential danger or coercion must be present.
  2. b) The preparation must instill a reasonable sense of fear or anticipation of physical harm.
  3. c) The party accused must possess the apparent capability to promptly execute the threat.

Case laws:

Stephen v. Myers, 1830.

In Stephen v Myers, the Claimant was a chairman, and at a meeting, he sat at a table where the Defendant sat. There were six or seven people between the Claimant and Defendant. The Defendant was disruptive and a motion was passed that he should leave the room. The Defendant said he would rather pull the chairman out of his chair and immediately advanced with his fist clenched towards the Claimant but was stopped by the man sitting next to the chairman. It seemed that he intended to hit the Claimant. The defendant maintained that there was no assault because there were individuals between him and his power to carry out his threat. According to the court, not all threats result in assaults. There needs to be a means of carrying that threat into effect, it must be a realistic threat of personal violence. The judge directed the jury that if the Defendant could have reached the chairman and hit him, there would have been an assault. However, there is no assault if the Defendant had no intention of hurting the Claimant or if it was improbable that he could reach the Claimant. The jury found for the Claimant.[6]


Battery is the deliberate and direct exertion of physical force upon another individual. It encompasses the actual act of striking or touching someone in a disrespectful, angry, vengeful, or insolent manner. Section 350 of the Indian Penal Code (IPC) holds individuals accountable for battery as a criminal offense. The battery can be further defined as any intentional and unauthorized contact with the plaintiff’s person or any object connected to it and closely associated with it. Battery occurs when force is applied to another person without lawful justification. It involves bringing any tangible object into contact with another person intentionally.[7] Battery necessitates actual physical contact with the body of another individual, such as seizing and restraining them, spitting in their face, throwing a chair or carriage they are occupying, dousing them with water, or striking a horse to cause it to bolt and throw its rider.

Essentials of Battery:

The following are the essential elements of a battery:

  1. There must be a physical touch, either directly or indirectly.
  2. The intention to cause harm or offense must be present.
  • The physical contact must lack lawful justification.
  1. The use of force is involved. v) The act of battery must be voluntary.

Case laws:

Fagan v. Metropolitan Police Commissioner, 1969.

In the case of Fagan v Metropolitan Police Commissioner, Fagan was instructed by a police officer to park his vehicle. Unbeknownst to Fagan, his car had inadvertently rolled onto the foot of the officer. Subsequently, Fagan was requested to relocate the car. However, instead of complying immediately, he responded with verbal abuse and switched off the engine before eventually adhering to the officer’s directive. The majority of the Court of Appeal, in their judgment, deemed Fagan’s actions as a continuous and affirmative act, commencing from the moment he moved the car until he turned off the engine. Consequently, they concluded that a battery had occurred. Conversely, Bridge J. dissented from this viewpoint, asserting that Fagan’s act was an unintentional omission, as he accidentally parked on the officer’s foot. Therefore, according to Bridge J., there was no intention at that stage, and Fagan simply neglected to relocate the car, resulting in the absence of a battery.

Difference between Assault and Battery:

Battery is distinguished from assault by the requirement of physical contact to be present in order to accomplish it. It encompasses not only injuries caused by an instrument held in the hand, but also encompasses situations where an individual is struck by any object thrown by another person. The application of force can be directed towards the human body itself or towards any object that comes into contact with it. However, for the tort of battery to be established, the plaintiff must demonstrate that the force used was without lawful justification. For instance, throwing water at a person constitutes an assault, and if any drops of water fall on the person, it becomes a battery. Similarly, riding a horse towards a person is considered an assault, but riding the horse against the person constitutes a battery. Additionally, pulling a chair away as a practical joke from someone about to sit on it is likely an assault until the person reaches the floor, as they reasonably anticipate harm from the chair being withdrawn. Once the person makes contact with the floor, it becomes a battery. It is important to note that the term assault is often used to encompass battery. However, not every instance of physical contact constitutes a battery.[8] The intention of the party involved must be taken into consideration. For example, touching a person solely to get their attention does not amount to a battery. A friendly pat on the back may be excused based on implied consent, whereas a hostile or rude touch cannot be justified. If the defendant possessed the intention to commit an assault, meaning that he had the cognitive ability to comprehend the essence of his action, and subsequently inflicted harm upon the plaintiff, he would be held accountable for assault and battery, regardless of his lack of awareness, due to a mental disorder, that his conduct was morally incorrect. However, if the severity of the mental disorder was such that the defendant’s act of striking the plaintiff was entirely involuntary, he would not be held liable.


The act of false imprisonment entails a complete restriction of an individual’s freedom, regardless of the duration, without any valid justification. The term ‘false’ denotes an erroneous or incorrect nature. It is a tort that imposes strict liability, thereby relieving the plaintiff from the burden of proving the defendant’s fault. Any form of confinement, whether it occurs within a conventional correctional facility, a private residence, the stocks, or even through the forcible detainment of an individual in public spaces, constitutes an act of imprisonment.[9] False imprisonment encompasses both civil and criminal wrongdoing, applicable to both private individuals and governmental authorities. In the Indian Penal Code, this matter is addressed as wrongful confinement under Section 340.

What constitutes False Imprisonment?

In order to establish the offense of false imprisonment, it is necessary to consider two fundamental elements:

(i) The complete restriction of an individual’s freedom. The confinement of the individual can take two forms:

(a) physical, such as physically restraining or touching the person; or

(b) constructive, which involves exerting authority over the person, for example, when an officer informs someone that they are required and compels them to accompany him.

(ii) The detention must be illegal. The duration of the detention is not relevant, but it must not be justified or authorized by law.

Who is liable?

Liability for false imprisonment can be attributed to an individual not only if they have personally arrested or detained the plaintiff, but also if they have played an active role in promoting or causing the arrest or detention. In addition to instances where liability can be imposed vicariously on a servant or agent, an individual can also be held liable if they have procured the arrest or detention through the involvement of an officer.

Arrest by Police Officer:

The burden of proof rests upon the individual affecting an arrest to substantiate the intrusion by demonstrating that the arrest was both lawful and based on a minimum level of reasonable suspicion.[10] If a law enforcement officer lawfully arrests an individual in good faith, with reasonable suspicion of their involvement in an offense under a valid law, they shall not be held liable for false imprisonment if the law is subsequently deemed invalid, even if the arrested individual cannot be convicted due to such a declaration.

Arrest by Private Person:

Section 43 of the Code of Criminal Procedure, 1973 stipulates that an individual who witnesses the commission of a non-bailable and cognizable offence or encounters a proclaimed offender has the authority to apprehend the said person. Subsequently, the person affecting the arrest is obligated to transfer custody of the arrested individual to a police officer stationed at the nearest police station. It is not imperative for the aforementioned private individual, who is present during the commission of a non-bailable and cognizable offence, to personally apprehend the wrongdoer.Instead, they may delegate the task of arresting the offender to another individual.

Case laws:

Bhim Singh vs. State of Jammu and Kashmir, 1986.

This case pertains to the issue of the unlawful detention of an MLA named Bhim Singh by the police authorities in the state of Jammu and Kashmir. According to the facts of the case, Bhim Singh was suspended from the J&K Assembly on August 17, 1985, and he challenged this suspension in the High Court of the state, which subsequently stayed the suspension in September. On the night of September 9-10, 1985, while traveling from Jammu to Srinagar, he was arrested by the police authorities. In response to this, Bhim Singh’s wife filed an application requesting the issuance of a writ to secure his release and declare his detention as illegal. After being released on bail, Mr. Singh submitted an affidavit in which he provided additional facts. [11]In this affidavit, he stated that he was held in police custody from September 10th to the 14th and was only presented before the Magistrate for the first time on the 14th. The affidavits submitted by the police officers contained various facts that were unrelated to the matter at hand. The court took note of the fact that these affidavits presented the facts in a manner that suggested the remand orders were obtained from the Executive Magistrate First Class and Sub-judge without actually producing Mr. Singh before them. Furthermore, the applications for remand did not include any statement indicating that Mr. Singh was being presented before the Magistrate or the Sub-judge. The court raised concerns about the questionable exercise of power by the judges and highlighted this particular aspect. The remand orders were initially obtained from the Executive Magistrate and subsequently from the Sub-Judge, even though the accused had not been presented before them. These orders were granted solely based on the applications submitted by the police officers. The judges passed these remand orders without any hesitation, disregarding the fact that the person being remanded had not been brought before them at all.


The foundation of the tort of trespass to a person lies in the element of intention. In the absence of intention, a cause of action for negligence may arise instead. Due to the prevalent confusion surrounding the distinction between trespass to a person and negligence, individuals frequently find themselves initiating legal proceedings inappropriately. Thus, it is crucial to possess the ability to discern which actions encompass the tort of trespass. This paper explored the concept of trespass clearly outlining the types of trespass, and further explaining the types of trespass to persons in a detailed manner with the related case laws.


[1] Ratanlal and Dhirajlal, Ratanlal Dhirajlal The Law Of Torts <> accessed 09 June 2024.

[2] BM Gandhi, Law of Tort (Eastern Book Co 1987).

[3] ‘TRESPASS TO GOODS’ (The Lawyers & Jurists) <> accessed 10 June 2024.

[4] ‘Trespass – Law of Tort – Law Times Journal’ <> accessed 9 June 2024.

[5] ‘Trespass to the Person – Indian Law Portal’ (8 September 2020) <> accessed 9 June 2024.

[6] ‘Stephens v Myers – Case Summary’ (IPSA LOQUITUR, 8 October 2020) <>

[7] ‘Trespass: Meaning, Nature, Types, Defenses and Case Laws – iPleaders’ <>

[8] Ramesh K Bangia, R.K. Bangia’s the Law of Torts: Including Motor Vehicles Act, Consumer Protection Act and Competition Act (Allahabad Law Agency).

[9] ‘Trespass to Person and False Imprisonment’ <> accessed 9 June 2024.

[10] Sakshi Raje, ‘Trespass – Law of Tort’ (Law Times Journal, 22 September 2018) <> accessed 9 June 2024.

[11] ‘Complete Case Analysis – Bhim Singh V. State of Jammu & Kashmir – Legal Thirst’ <> accessed 9 June 2024.

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