SECTION 452 IPC - Indian Penal Code - House-trespass after preparation for hurt, assault or wrongful restraint



IPC Section-452

Description of IPC Section 452

According to section 452 of Indian penal code, Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting and person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

 

Offence : House-trespass, having made preparation for causing hurt, assault, etc.


Punishment : 7 Years + Fine


Cognizance : Cognizable


Bail : Non-Bailable


Triable : Any Magistrate





Section 452- House-trespass after preparation for hurt, assault or wrongful restraint

Enjoyment of one's property without any intrusion is the right of every person and the act of curtailment of such right is what makes trespass an offence. Trespass in common language means to enter another's property without his permission expressed or implied. The term ‘trespass' is generally viewed as a civil wrong and it simply means entry on someone's land or property without permission.
 
When a Trespass is done with a criminal intention, it amounts to criminal trespass and is regarded as a punishable offence under Indian Penal code, 1860. If a person's right to enjoyment of property, whether movable or immovable is curtailed due to criminal activities of another person, be it theft or assault, the IPC offers remedy for such an infringement of right. The subject of Criminal trespass has been discussed in IPC in 22 sections starting from sections 441 to 462. However, in this article we will discuss an aggravated form of criminal trespass, i.e. house trespass after preparation to cause hurt, assault or wrongful restraint.

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What is Trespass under Indian Penal Code?

Trespass is a physical interference by a person in a property belonging to another person. It could be a tort of trespass when there is a direct interference with the peaceful enjoyment of the land in the form of unlawful entry, unlawful placing of things or inducing dangerous things or animals into the land or it could be a criminal act provided under Section 441 of Indian Penal Code, 1860 which defines ‘criminal trespass’ as ‘Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered and unlawfully remains there.’ Intention is an element as ‘mens rea’ is important for an act to be criminal. Punishment for the same is provided under Section 447, which includes imprisonment for upto 3 months; fine upto Rs. 500 or both.

The Supreme Court examined the definition of a ‘trespass’ in 2010 in Laxmi Ram Pawar v. Sitabai Balu Dhotre, in the context of Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. The Supreme Court was of the opinion that, ‘A trespass is an unlawful interference with one’s person, property or rights. With reference to property, it is wrongful invasion of another’s possession.’

A person who unlawfully remains in the property of the other is also liable for ‘trespass by remaining on the land.’ This is when a person lawfully enters into another persons’ property but remains there even after the right ceases to exist.  There is ‘continuing trespass’ as well, which means that trespass by way of personal entry continues as long as the wrong-doer is personally on the land. Or, if he has induced a thing, trespass continues for as long as the thing is removed from the land.
 

What are the Essential Ingredients to hold a person liable under Section 452?

The essential ingredients of house-trespass are that (a) the accused must commit criminal-trespass that by unlawfully entering into or (b) by remaining on the property unlawfully after initial lawful entry; (c) that such trespass was in respect of a building, tent or vessel; and (d) that such building, tent or vessel was used as a human dwelling or as a place of worship or as a place for storing property.
 
House-trespass is an aggravated form of criminal-trespass, which has been defined under Section 441 of the IPC and which is punishable under Section 447 of the IPC. It is, therefore, obvious that before a person is held to be guilty of an offence punishable under Section 452 of the IPC, it must be shown that in the alleged trespass, all the elements of ‘criminal-trespass' or ‘house-trespass' were present.

Thus, the essentials when fulfilled, is an offence of house-trespass with the intent to cause hurt. The same has been further elaborated below for a better understanding:
 
1. Entering the Property
As the section mentioned the terms whoever enters it must be clear as to what kind of entry is required to make a case of criminal trespass. The entry here is meant to be any person entry into or upon the property by the accused but not a constructive one like an entry made by a servant. It is not required that the entry made must be by use of force, it is sufficient if it is unauthorised or against the will of the possessors of that property.
 
The second essential of this section is a possession of the property must be by another, but what kind of property is covered by the scope of criminal trespass offence is not mentioned in the section. The property here includes movable as well as immovable property. Hence in the case of Dhananjoy v. Provat Chandra Biswas, AIR 1934 Cal 480, a boat was leased out and the accused injured the lessee to take possession of that boat. The court held it to be an offence of criminal trespass. This proves that a property can be of any kind to constitute an offence of criminal trespass.
 
The scope of property does not include intangible things like rights. Such infringement would not amount to the offence of criminal trespass.
 
2. The Property must be possessed by another
To constitute an offence under this section the property must be possessed by another person and not the trespasser himself. The law intends to protect the interest of the possessors and not the person who are owners. The law does not require the possession to be legal or lawful, all that is required to be proved is that the possession is actual and exclusive. The complainant may file a case of criminal trespass as possessors of a property even though the trespasser is the owner itself. Further, it is not mandatory for that person to be present at the time of criminal trespass, if the entry is made by the accused with the intention as mentioned in the section.
 
3. Intent of the Accused must be to Cause Hurt, Assault or Wrongful Restraint
For conviction under this section, the intent of the accused is essential. As the trespass may not be criminal if the accused do not possess the intention to ‘commit an offence or to intimidate, insult or annoy any person in possession of such property’. Thus the objective of the act done by the accused must be driven by his criminal intention.
 
The prosecution is required to prove this intention of the accused in the court of law, the absence of which, conviction is impossible under this section. The above intention to intimidate or insult or annoy the person in possession of that property as claimed by the prosecution must be actual. The intention of the accused can be proved by circumstantial evidence in which the accused expresses his intention or by the series of acts undertaken by the accused.
 
In the case of Mathri v. State of Punjab, AIR 1964 SC 986, the accused entered the house possessed by the victim along with warrants for delivery of possession for the execution of the decree. Although the warrants were not executable under the law, the court of law held that the intention of the accused was not to insult or annoy any person in possession of that property. Thus, the accused was not convicted of criminal trespass.

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Punishment for House-trespass after Preparation for Hurt, Assault or Wrongful Restraint under Section 452 IPC

This section provides punishment to any person who commits the act of house-trespass after making preparation for causing hurt to any other person or for assaulting any other person, or for wrongfully restraining any person, or for putting the person in fear of hurt. Any person who does this act shall be punished with imprisonment of not more than seven years, and shall also be liable to fine.
 
Example: Where an accused went into a house with a fictitious warrant to arrest someone, and took away the person with him against his will, this section will be held to apply.
 

Is an Offence under Section 452 of IPC Compoundable?

This offence is not listed as a Compoundable Offence. Further, in Mahinder Singh v. State (Crl.M.C.No. 3268/2010), the court said that since Section 452 IPC is a non-compoundable offence, this Court in exercise of its inherent powers under CRPC cannot make a non-compoundable offence as a compoundable offence and record a compromise.

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Is Staying on the Property after a Lawful Entry Criminal Trespass?

The section punishes for two instances, one is entry coupled with an intention to intimidate or insult or annoy the person who is in possession of the property or commit any offence and the second one is the remaining unlawfully after entering the property lawfully with the intention to intimidate or insult or annoy the person who is in possession of the property or commit any offence.
 
The entry in the former one may be lawful or may not be, but the accused is punished merely for entering with the requisite intention. Whereas, in the latter case, the entry must be lawful but subsequently, the accused must remain into or upon the property unlawfully with the requisite intention.
 
The prosecution must prove not only the continuous presence of the accused to be unlawful but also the intention as required under this section. In the case of State of Maharashtra v. Tanba Sadadhio Kumbi, AIR 1964 Bom 82, the accused who was vice-chairman of a school committee had entered a school and beat up boys in that school for personal reasons.
 
The headmaster of that school who was not present at the time of that incident subsequently visited the school and stated to the accused that such behavior was not encouraged. The accused due to this, mishandled the headmaster and left threatening. The court held that the act of the accused was covered under the unlawful presence after lawful entry with the requisite intention.
 

Aggravated forms of House Trespass

The aggravated forms of House Trespass are laid down in Sections 449-452. The aggravated form of house trespass is determined by the gravity of the offence.
 
Section 449- Whoever commits house-trespass in order to the committing of any offence punishable with death, shall be punished with imprisonment for life, or with rigorous imprisonment for a term not exceeding ten years, and shall also be liable to fine.
 
An act can be said to be committed "in order to the committing of an offence" even though the offence may not be completed. Thus, if a person commits a house trespass with the purpose of the committing of theft but has failed to accomplish the purpose, it will be proper to say that he has committed the house trespass in order to the committing of theft. There can be no doubt that the words "in order to" have been used to mean "with the purpose of". If the purpose in committing the house trespass is the commission of an offence punishable with death the house trespass becomes punishable under s. 449 of the Indian Penal Code.
 
Section 450- Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment for life, shall be punished with imprisonment of either description for a term not exceeding ten years and shall also be liable to fine.
 
In case of Surjit Singh v. State of Punjab, The appellants along with other co-accused committed criminal trespass into the house of deceased Harbans Kaur for the purpose of raping her. The attempt seemed to be unsuccessful because the sons of deceased had started shouting for help. Surjit Singh (one of the accused) alleged that if she stays alive she will implicate them all and therefore Harbans Kaur should be killed; on listening this, his co-accused gave a brickbat blow on her head, after which she died. The accused were held guilty under Section 450, IPC, along with other charges levied against them.
 
Section 451- Whoever commits house-trespass in order to the committing any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years.
 
In Ameen Vs. State of Kerala, The appellant committed criminal trespass by entering into the varandah of the dwelling house of Babu with intent to commit an offence. The appellant thereby committed the offence of house-trespass. But he committed house-trespass not for committing any offence punishable with death. Therefore Sec. 449 of IPC was not attracted. The court therefore set aside his conviction and sentence under Sec. 449 of IPC. Only Sec. 451 of IPC was attracted. The Court convicted him thereunder and imposed on him a sentence of rigorous imprisonment for two years and a fine of Rs. 15,000/-.

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What Precautions can one take to Safeguard oneself from House Trespass?

It is important for a person to be primed in order to handle an instance of trespass in their land/property. First and foremost, one has to keep his/her title deeds viz mother deed, conveyance deed, upto date tax paid receipt, khata from the appropriate authority ready. In case of agricultural land, RTC extract (Record of Rights, Tenancy and cultivation) and MR extract (Mutation Register) from concerned Tahasil office and Akarbandh, Tippani copy, and Phodi sketch from the survey department. All the aforesaid documents show that the person has legal title and is the rightful owner and has been in peaceful possession and enjoyment of the subject property.
 
Apart from having all these legal documents in place, in order avoid trespass and to be at a safer side one has to place either compound wall or barbed wire fencing around their property and exhibit his ownership with board stating ‘This property belongs to XYZ, trespassers will be prosecuted. (with phone No.)’ This helps one to declare that he has the undisputed title to the property with no objections from anybody including the trespasser.
 
In spite of all this, if the trespasser enters one’s land repeatedly even upon asking them to leave, or damages his board or compound, then one must go ahead and lodge a police complaint under Section 441 of the Indian Penal Code. You could also plead for interim relief from the court restraining the trespasser from causing any further damage. Interim or temporary relief can be granted at any period of a suit. It is granted if it is proved by affidavit or otherwise, that the subject property is in danger of being wasted, alienated or if defendant threatens to dispose of the property with the intent to defraud creditors.
 
Further, one can also file a suit for declaration of title, as once it is declared that you have the title to the property, the trespasser cannot transfer the property illegally.  It is also impertinent for you to know the particulars of the trespasser and make note of the instances of trespass. Details like the date, time, the number of times the person trespassed along with a photograph or video would add to your benefit. These measures will help you eliminate the trespasser from your property.
 

What is the Trial Procedure in a case filed under Section 452 of IPC?

The trial procedure in a case filed under is similar to any other criminal case. The same has been explained below from the initial stages of filing a complaint till the court gives the final judgment:

1. FIR, Remand and Bail
The first step in the procedure is to file an FIR after which the accused is arrested. Whenever an accused is arrested for any offense and police cannot complete the investigation within 24 hours then such person is produced before a magistrate for seeking an extension of custody. The magistrate can grant police custody to the accused which shall not be more than 15 days in the whole considering the application. However, if the magistrate does not seem convinced then the accused is taken to magisterial custody. However, the magistrate under section 167 (2) (a) may authorize the detention of the accused person, otherwise in custody of police beyond the period of fifteen days; if he is satisfied that adequate grounds exist in doing so. However, no magistrate shall authorize custody for more than-

  1. Ninety days, where the investigation is of an offense punishable with death, imprisonment for 10 years or imprisonment for a term not less than ten years.

  2. Sixty days, where the investigation is of any other offense.

On the expiry of the 90 days or 60 days, the accused can be granted bail by applying for a grant of bail, within the provisions of section 436, 436 and 439 of Cr.P.C.
 
2. Final Report by Police u/s 173 of the Criminal Procedure Code
The police after completing the investigation have to file a final report under section 173 of the CrPC. This is the conclusion of the investigation and the evidence collected by the Investigation Agency. If the evidence collected against the accused is deficient then the police may file a report under section 169 of the Cr.P.C and release the accused on executing a bond and undertaking for appearing the Magistrate empowered to take cognizance.

The final report will of 2 types.

  1. Closure Report.

  2. Charge sheet/ Final report

 
3. Closure Report
A closure report is filed when the police have no evidence to prove that the alleged offense has been committed by an accused. After the closure report is filed the magistrate has 4 options.

  1. Accept the report and close the case.

  2. Direct the investigating agency to investigate the matter further, if he/ she thinks there is still some gap in the investigation.

  3. Issue notice as he is the only person who can challenge the closure report.

  4. May reject the closure report and take cognizance under section 190 of Cr.PC and under section 204 of Cr P.C issue summons to the accused and direct his appearance to the magistrate.
     

4. Charge Sheet
A charge sheet includes the elements of the offense in a prescribed form, and it also contains the complete investigation of the Police authorities and the charges slapped against the accused. It includes facts, in brief, all statements recorded under section 161, 164, a copy of the FIR, list of witnesses, list of seizure and other documental evidence. According to Chap 6 of the CrP.C, on the filing of the charge sheet, the accused may be issued summons by the magistrate to appear before him on a given date. On the filing of the charge sheet, the Magistrate takes cognizance of the matter under section 190 of the Cr.P.C. The court can reject the charge sheet and discharge the accused or can accept it and frame the charges and, post the case for trial.
 
5. Plea of Guilty Or Not Guilty By Accused
If the accused pleads guilty, the court shall record the plea and may convict him. If the accused pleads not guilty then the case is posted for trial.
 
6. Opening Statement by Prosecution
The case is opened by the Prosecutor, who will have to explain the court about the charges put on the accused in the charge sheet. The accused at any time can file an application under section 227 for discharging him for the charges levied on the ground that the charges against him are false and are not strong or sufficient enough to proceed against him in the trial.
 
7. Evidence Produced by the Prosecution
Witnesses from both sides are examined. The stages of evidence include Examination of Chief, Cross Examination and Re-examination. To produce the guilt of the accused, the prosecution is required to produce evidence. The evidence needs to be supported with statements from witnesses. This process is called "examination in chief". The magistrate has the power to issue summons to any person as a witness or orders him to produce any document. (Session trial- section 233, warrant trial- section 242 and summons trial-section 254).
 
8. Statement of the Accused
After the evidence of the prosecution, the statement of the accused is recorded under section 313 of Cr.P.C. An oath is not administered during the recording of the statement. The accused then says his/her facts and circumstances of the case. Anything recorded during the statement can be used against him or her at any later stage.
 
9. Defense Witness
The defense after the statement of accused produces oral and documentary evidence. This is under section 233 for sessions trial, sections 243 for warrant trial, section 254 (2) for summons trial). In India the defense is generally not required to give any defense evidence as the burden of proof is on the prosecution.
 
10. Final Arguments
Final arguments are presented by the Public Prosecutor and the defense counsel. According to section 314 of Cr.P.C, any party to a proceeding may, as soon as may be, after the close of his evidence, address concise oral arguments, and may, before he concludes the oral arguments, if any, submit a memorandum to the Court setting forth concisely and under distinct headings, the arguments in support of his case and every such memorandum shall form part of the record.
A copy of every such memorandum shall be simultaneously furnished to the opposite party.
 
11. Judgment
After hearing all the arguments, the judge decides whether to convict the accused or acquit him. This is known as judgment. (Session trial- Section 235, warrant trial- section 248 and summon trial- section 255). If the accused is convicted, then both sides give their arguments on the punishment. This usually done if the punishment is life imprisonment or capital punishment.
 
After hearing the arguments on the sentence, the court finally decides what should be the punishment for the accused. Various theories of punishment are considered like the reformative theory of punishment and deterrent theory of punishment. Age, background, and history of the accused are also considered while giving the judgment.

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What is the Procedure to Appeal in a case filed under Section 452 of IPC?

With the exception of the statutory arrangements set out in the Code of Criminal Procedure, 1973 or any other law which is in power, an appeal can't lie from any judgment of a criminal court. Accordingly, there is no vested right to appeal as, for example, even the main appeal will be exposed to statutory limitations. The legitimization behind this standard is that the courts which adjudge a case are equipped enough with the assumption that the trial has been led reasonably. In any case, according to the stipulation, the party has a privilege to appeal against any judgment passed by the Court under exceptional conditions involving a judgment of acquittal, conviction for lesser offense or lacking remuneration.
 
By and large, same arrangements of rules and procedures are utilized to administer the appeals in the Sessions Courts and High Courts (highest court of appeal in a state and appreciates more powers in issues where appeal is maintainable). The highest court of appeal in the nation is the Supreme Court and henceforth, it appreciates the broadest powers in the instances of appeals. Its forces are generally administered by the arrangements set down in, Indian Constitution, and the Supreme Court (Enlargement of Criminal Appellate Jurisdiction), 1970.
 
The accused is given the option to appeal to the Supreme Court against the judgment of the High Court if the High Court has turned around a request for his acquittal on appeal by indicting him, in this way, condemning him to detainment forever or for a very long time or more, or till death. Understanding the significance of a criminal appeal being made to the Supreme Court, a similar law has additionally been set down in Article 134(1) of the Indian Constitution under the appellate jurisdiction of the Supreme Court. The Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, has likewise been passed by the council in consonance with Article 134(2) of the Indian Constitution to present extra powers on the Supreme Court to engage and hear appeals from the High Court under specific conditions.
 
A comparative option to appeal has been allowed to one or all charged persons if more than one person have been sentenced in a trial and such request has been passed by the court. Nonetheless, there are sure conditions under which no appeal will lie. These arrangements have been set down under Section 265G, Section 375 and Section 376 of The Code of Criminal Procedure, 1973.
 

How to get Bail if charged under Section 452 of IPC?

In order to apply for bail when accused under Section 452 of the IPC, the accused will have to submit an application for bail in the court. The court will then send the summons to the other party and will fix a date for the hearing. On the date of hearing, the court will hear arguments from both sides and would give a decision based on the facts and circumstances of the case.

In case the accused has an apprehension of an arrest under Section 452 of the IPC, he or she can also file an application for anticipatory bail with the help of a criminal lawyer. The lawyer will file the anticipatory bail application in the requisite court having the authority to adjudge the particular criminal matter along with a vakalatnama. The court will then notify a public prosecutor about the anticipatory bail application and would ask him to file objections, if any. Thereafter, the court will appoint a date of hearing and after hearing the final arguments of both the parties would give a judgment based on the facts and circumstances of the case.

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Important Judgments Relating to Section 452 of IPC

  1. State of Maharashtra (through Rural Police Station, Ratnagiri) v. Babu Bhaga Zore and Others (2020 SCC OnLine Bom 325):

To put forward an offence under Section 452 of IPC, it has to be ascertained (a) that the accused committed house trespass and (b) it was committed after making preparation for causing hurt to, or for assaulting or for wrongfully restraining, some person, or for putting some person in fear of hurt, or of assault, or of wrongful restraint. If any one of the two requirements is not satisfied then Section 452 would not be involved.
 

  1. Moreshwar V. State of Maharashtra and Anr. (2005 11 SCC 429)

In Moreshwar V. State of Maharashtra and Anr. (2005 11 SCC 429), the appellant had committed trespass in the premises occupied by the complainant and her husband as tenants and the appellant had tried to outrage her modesty. The Learned Senior Counsel, in this case, contended that it was an offence under Section 451 which provides for the commission of house trespass in order to the committing of any offence punishable with imprisonment. It was held that the appellant had entered the house occupied by the complainant for seeking sexual favors and not for causing any physical hurt or assault or wrongful restraint. The court held that the offence made out against the appellant is only under Section 451 and not under Section 452.
 

  1. Rajinder Kumar Malhotra vs. Indian Bank & Ors:

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.
 

  1. Sentini Cermica P. Ltd. Vs Kunchi Krishna Mohan and Ors:

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.
 

  1. Bavisetti Venkat Surya Rao v. Nandipati Muthayya:

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 sell some movables to recoup the amount. The defendant called a goldsmith to evaluate the value of gold in the house of plaintiff, but the person standing at the time of such evaluation near the house borrowed the amount from another to give it to the defendant, and after the defendant had taken the amount, the plaintiff sued him for assault.
 
It was held that since the defendants, after the arrival of the Goldsmith said nothing and did nothing and the threat of use of force by the goldsmith to the plaintiff was too remote a possibility to have put the plaintiff in fear of immediate or instant violence, there was no assault.

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How can a Lawyer help you in a Case under Section 452?

Being charged with a crime, whether major or minor, is a serious matter. A person facing criminal charges risks severe penalties and consequences, such as jail time, having a criminal record, and loss of relationships and future job prospects, among other things. While some legal matters can be handled alone, a criminal arrest of any nature warrants the legal advice of a qualified criminal lawyer who can protect your rights and secure the best possible outcome for your case.
If you're facing criminal prosecution, a criminal lawyer can help you understand:

  • The nature of the charges filed;

  • Any available defenses;

  • What plea bargains are likely to be offered; and

  • What is expected after trial or conviction.

This is why it is important to have a criminal lawyer by your side to help you when charged with a crime as heinous as the one mentioned under section 302 of the Indian Penal Code.

FAQ's on IPC Section 452


What offence is defined under IPC 452?

IPC 452 Offence: House-trespass, having made preparation for causing hurt, assault, etc..


What is the punishment for IPC 452 Case?

The punishment for IPC 452 is 7 Years + Fine.


Is IPC 452 cognizable offence or non-cognizable offence?

IPC 452 is a Cognizable.


How to file/defend your case for IPC 452 offence?

Use LawRato for filing/defending your case under IPC 452 with the help of best criminal lawyers near you.


Is IPC 452 bailable or non-bailable offence?

IPC 452 is a Non-Bailable offence.


In what court can IPC 452 be tried?

IPC 452 is tried in the court of Any Magistrate.


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