Criminal Trespass under the Bharatiya Nyaya Sanhita, 2023

With the advent of the Bharatiya Nyaya Sanhita, 2023 (BNS), India’s criminal law regime underwent significant changes, replacing the colonial-era Indian Penal Code, 1860. One of the key areas revisited is Criminal Trespass, a commonly invoked offence in disputes involving property, personal security, and possession. Though the foundational principles of the offence remain intact, the BNS refines the definitions, streamlines the provisions, and modernises terminology in alignment with contemporary Indian legal and societal standards.

Prior to the BNS, criminal trespass was defined under Section 441 of Chapter XVII of the Indian Penal Code, 1860. It is now covered under Section 329 of the BNS, 2023.

This article provides a comprehensive overview of the law relating to Criminal Trespass under the BNS, highlighting its statutory framework, essential ingredients, key classifications such as house-trespass and lurking house-trespass, and important judicial interpretations.

Statutory Framework under the Bharatiya Nyaya Sanhita, 2023

Section 329: Criminal Trespass

Section 332: House-Trespass and House-Breaking

Section 333: House-Trespass after Preparation for Hurt, Assault or Wrongful Restraint

Section 334: Dishonestly Breaking Open Receptacle Containing Property 

Section 329: Criminal Trespass and House-Trespass

Section 329 of the Bharatiya Nyaya Sanhita, 2023, reads as follows:

(1) Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy the person in possession, or having lawfully entered, unlawfully remains there with such intent, is said to commit criminal trespass.

(2) Whoever commits criminal trespass by entering into or remaining in any building, tent, or vessel used as a human dwelling, or a place of worship or for custody of property, is said to commit house-trespass.

Punishment:

Criminal trespass: Imprisonment up to three months, or fine up to ₹5,000, or both.

House-trespass: Imprisonment up to one year, or fine up to ₹5,000, or both.

The provision essentially retains the essence of Sections 441 and 442 of the IPC, but modernises the language, enhances fines, and consolidates related provisions for clarity and better enforcement.

Key Elements of Criminal Trespass

For an act to qualify as criminal trespass under Section 329(1), the following essential components must be present:

• Unauthorised Entry or Unlawful Stay: The accused either enters without permission or stays unlawfully after initially entering with permission.
• Possession by Another: The property must be in the legal possession of someone else.
• Malicious Intent: The entry or continuance must be with intent to commit an offence, or to intimidate, insult, or annoy the person in possession.

The emphasis on intent distinguishes mere civil disputes from criminal liability. Mere entry without malicious intent may not attract penal consequences.

House-Trespass: A Specific Form

Section 331: Punishment for Lurking House-Trespass or House-Breaking

1. Any person who commits lurking house-trespass or house-breaking shall be liable to imprisonment of either description for a term up to two years, and shall also be liable to fine.
2. If the offence occurs between sunset and sunrise, the punishment may extend to three years of imprisonment of either description, along with fine.
3. If such trespass or breaking is committed with intent to commit any imprisonable offence, the offender may be punished with imprisonment up to three years and fine. If the offence intended is theft, imprisonment may extend up to ten years.
4. If the act occurs at night (after sunset and before sunrise) with the intent to commit an offence punishable with imprisonment, the punishment may extend to five years with fine. If the intended offence is theft, imprisonment may extend to fourteen years.
5. If the accused commits lurking house-trespass or house-breaking after making preparations to cause hurt, assault, wrongful restraint, or to create fear of such harm, the punishment may extend to ten years and shall also include fine.
6. Where such preparations exist and the offence is committed at night, punishment may extend to fourteen years, along with fine.
7. If grievous hurt is caused or there is an attempt to cause death or grievous hurt during the commission of lurking house-trespass or house-breaking, the offender shall be punished with imprisonment for life, or imprisonment up to ten years, and shall also be liable to fine.
8. If such an offence is committed at night and any accused voluntarily causes or attempts to cause death or grievous hurt, every person involved shall be liable for life imprisonment or imprisonment up to ten years, and also fine.

Section 332: House-Trespass to Commit an Offence

Anyone who commits house-trespass intending to commit a further offence shall face penalties based on the severity of the intended offence:

• If the intended offence is punishable with death: imprisonment for life or rigorous imprisonment up to ten years, along with fine.
• If punishable with life imprisonment: imprisonment of either description up to ten years, and a fine.
• If punishable with imprisonment: imprisonment of either description up to two years, and a fine.

However, if the intended offence is theft, imprisonment may extend to seven years.

Section 333: House-Trespass After Preparation to Cause Harm

Any person who commits house-trespass after making preparation to cause hurt, assault, wrongful restraint, or to create fear of such acts, shall be punished with imprisonment of either description for up to seven years, and shall also be liable to fine.

Section 334: Dishonestly Breaking Open Receptacles

Anyone who dishonestly or with intent to commit mischief, breaks open or unfastens any closed receptacle believed to contain property shall be punishable with imprisonment up to two years, or fine, or both.

If a person is entrusted with such a closed receptacle and, without authority, dishonestly or with mischievous intent opens or unfastens it, the punishment may extend to three years of imprisonment, or fine, or both.

Judicial Perspective

[1] Mathuri and Ors. v. State of Punjab (1963)

The Supreme Court held that landlords executing expired possession warrants did not commit criminal trespass, as there was no intent to annoy or intimidate. The accused, part of an armed mob resisting the entry, were rightly convicted of unlawful assembly and related offences. However, due to special circumstances, sentences of aged and female appellants were reduced to time already served.

[2] Rajinder & Ors. v. State of Haryana (1995)

The Supreme Court upheld the conviction of several appellants for a violent assault that led to three deaths and multiple injuries during a land dispute. The Court ruled that although the accused were in settled possession of the disputed land, the complainant party’s entry was not with intent to intimidate, insult, or commit an offence, and hence did not amount to criminal trespass under Section 441 IPC (currently Section 329 BNS). Therefore, the accused had no right of private defence.

The Court rejected the plea of private defence and upheld convictions under Sections 302/149 IPC (currently Section 103/190 BNS), except for one appellant, Jai Narain, who was acquitted due to lack of specific involvement.

Conclusion

Criminal trespass under Section 329 of the Bharatiya Nyaya Sanhita, 2023 is a carefully updated legal provision that retains the essence of its predecessor in the IPC while enhancing clarity, penalties, and contextual relevance. It focuses on protecting property and personal security, upholding the rule of law, and ensuring peace in both private and public spaces.

For legal professionals, law enforcement agencies, and ordinary citizens, understanding this shift is essential in navigating disputes involving unlawful entry, intent-based intrusions, and residential violations.

References

[1] Indian Penal Code, 1860

[2] Bharatiya Nyaya Sanhita, 2023 

[3] Mathuri and Ors. v. State of Punjab, 1964 AIR 986

[4] Rajinder & Ors v. State Of Haryana, 1995 SCC (5) 187