Punishment for House-Trespass or Housebreaking

(1) Lurking house-trespass or house-breaking — the base punishment

Sub-section (1) is the base punishment. It applies to whoever commits lurking house-trespass or house-breaking — the two offences defined in Section 330 — and provides for imprisonment of either description for a term which may extend to two years, and also liability to fine. The wording is that the offender “shall be punished with imprisonment” and “shall also be liable to fine”: imprisonment is not stated as one alternative among several (compare Section 329(3) and (4), where fine is an alternative), and fine is a further liability. “Either description” carries the meaning given in Section 4(c) of the Sanhita (rigorous or simple), and Section 7 lets the sentencing Court direct that the imprisonment be wholly rigorous, wholly simple, or partly each.

The sub-section covers two offences joined by “or”: lurking house-trespass (Section 330(1)) and house-breaking (Section 330(2)). Both begin from house-trespass as defined in Section 329(2), so all the ingredients of criminal trespass, and the required kind of building, tent or vessel, must be present. The later sub-sections of Section 331 each add a feature to these same two offences — the hours of darkness, an intended offence, preparation for hurt, assault or wrongful restraint, or actual harm — so sub-section (1) is the tier that describes the two offences without any of those added features.

Under the BNSS First Schedule, sub-section (1) is listed as imprisonment for 2 years and fine, cognizable, non-bailable, and triable by any Magistrate (which, according to the Schedule’s explanatory note, does not include Executive Magistrates). Section 331 appears in neither compounding table of BNSS Section 359. The corresponding old provision, IPC 453, used the same words and the same two-year maximum.

(2) Lurking house-trespass or house-breaking after sunset and before sunrise

Sub-section (2) raises the maximum term to three years where lurking house-trespass or house-breaking is committed after sunset and before sunrise. The rest of the sentence is as in sub-section (1): imprisonment of either description, and also liability to fine. The only change from sub-section (1) is the time of the offence.

The time is stated as a period, “after sunset and before sunrise”. Section 2 of the Sanhita does not define “sunset” or “sunrise”, and the sub-section does not say how they are fixed for a given place and day; the words are used as written. The period is the time when the lurking house-trespass or house-breaking is committed. The old Indian Penal Code, 1860 used the label “by night” for the same period (defined in IPC 444 and 446); the Sanhita drops the label and states the period directly, here and in sub-sections (4), (6) and (8).

The same period is used in the Sanhita’s rules on private defence of property. Section 41(b) lists house-breaking after sunset and before sunrise among the offences against which that right extends, under the restrictions specified in Section 37, to the voluntary causing of death or any other harm to the wrong-doer, and Section 43(e) provides how long the right continues against such house-breaking.

Under the BNSS First Schedule, sub-section (2) is listed as imprisonment for 3 years and fine, cognizable, non-bailable, and triable by any Magistrate; it is not compoundable. The corresponding old provision, IPC 456, had the same three-year maximum, expressed as “by night”.

(3) In order to commit an offence punishable with imprisonment

Sub-section (3) applies to lurking house-trespass or house-breaking committed “in order to the committing of any offence punishable with imprisonment”. The punishment is imprisonment of either description for up to three years, and also liability to fine; and if the offence intended to be committed is theft, the term may be extended to ten years. The sub-section therefore has a general tier (three years) and a theft tier (ten years).

What matters is the intended offence. The words “in order to” make the purpose of the lurking house-trespass or house-breaking the test: it must have been committed for the purpose of committing an offence that is punishable with imprisonment. The sub-section does not say that the intended offence must actually be carried out. Section 331 is not among the provisions listed in sub-clauses (a) and (b) of Section 2(24), so under that definition “offence” here means a thing made punishable by the Sanhita (subject to the opening words of Section 2, “unless the context otherwise requires”). Theft is defined in Section 303(1). The ten-year tier depends on what was intended, not on whether anything was in fact taken.

Section 332(c) refers simply to house-trespass committed in order to commit an offence punishable with imprisonment, with no mention of lurking or house-breaking; its maximum is two years, or seven years where theft was intended. Sub-section (3) adds the lurking or house-breaking feature, and its ceilings are three years and ten years.

Under the BNSS First Schedule, sub-section (3) is listed as imprisonment for 3 years and fine, cognizable, non-bailable, triable by any Magistrate; and, where the offence is theft, imprisonment for 10 years, cognizable, non-bailable, triable by a Magistrate of the first class. It is not compoundable. The corresponding old provision, IPC 454, used the same words and the same three-year and ten-year maxima.

(4) After sunset and before sunrise, in order to commit an offence punishable with imprisonment

Sub-section (4) combines the features of sub-sections (2) and (3): lurking house-trespass or house-breaking committed both after sunset and before sunrise and in order to the committing of any offence punishable with imprisonment. The punishment is imprisonment of either description for up to five years, and also liability to fine; and if the offence intended to be committed is theft, the term may be extended to fourteen years.

Both features must be present: the time, as explained under sub-section (2), and the purpose, as explained under sub-section (3). As in sub-section (3), the sub-section does not say that the intended offence must actually be carried out, and the fourteen-year tier depends on theft having been the intended offence. The corresponding old provision, IPC 457, used the same combination of time and purpose, worded “by night”, with the same five-year and fourteen-year maxima.

The Sanhita refers to sub-section (4) elsewhere. The Explanations to Sections 212 (Furnishing false information), 240 (Giving false information respecting an offence committed) and 249 (Harbouring offender) each extend the word “offence” to acts committed out of India which, if committed in India, would be punishable under a list of provisions; sub-sections (4), (6), (7) and (8) of Section 331 are among those listed.

Under the BNSS First Schedule, sub-section (4) is listed as imprisonment for 5 years and fine, cognizable, non-bailable, triable by any Magistrate; and, where the offence is theft, imprisonment for 14 years, cognizable, non-bailable, triable by a Magistrate of the first class. It is not compoundable.

(5) After preparation for hurt, assault or wrongful restraint

Sub-section (5) applies to lurking house-trespass or house-breaking committed “having made preparation” for one of four purposes: causing hurt to any person; assaulting any person; wrongfully restraining any person; or putting any person in fear of hurt, of assault or of wrongful restraint. The punishment is imprisonment for a term which may extend to ten years, and also liability to fine. The printed text reads “imprisonment of either description or a term which may extend to ten years”, with the word “or” where the other sub-sections have “for”; the corresponding IPC text (Section 455) prints the same words.

Section 114 provides that whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. Section 130 defines “assault”, and Section 126(1) provides that whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed is said wrongfully to restrain that person. Section 2 does not define “preparation”; the sub-section names the purposes for which the preparation must have been made, but does not list examples of preparation.

The sub-section does not require that any hurt, assault, restraint or fear actually be caused: the offence lies in committing the lurking house-trespass or house-breaking having made the preparation. If grievous hurt is caused, or death or grievous hurt is attempted, sub-section (7) is the one to read. Where an offender has made such preparation and also intends an offence punishable with imprisonment, the facts can be described by more than one sub-section (for example, (3) and (5)); the text of Section 331 does not say how the choice between them is made, and this page does not go beyond the words. Section 333 uses the same “preparation” language for house-trespass, without any reference to lurking or house-breaking, and carries a maximum of seven years.

Under the BNSS First Schedule, sub-section (5) is listed as imprisonment for 10 years and fine, cognizable, non-bailable, triable by a Magistrate of the first class. It is not compoundable.

(6) After sunset and before sunrise, having made preparation for hurt, assault or wrongful restraint

Sub-section (6) is the night-time version of sub-section (5): lurking house-trespass or house-breaking committed after sunset and before sunrise, having made preparation for causing hurt, for assaulting any person, for wrongfully restraining any person, or for putting any person in fear of hurt, of assault or of wrongful restraint. The punishment is imprisonment of either description for a term which may extend to fourteen years, and also liability to fine.

Both features must be present, and each is explained above: the time under sub-section (2), and the preparation under sub-section (5). The four purposes of the preparation are the same as in sub-section (5). Here the text reads “imprisonment of either description for a term”, in the ordinary form. As with sub-section (5), no harm has to have been caused; if grievous hurt is caused, or death or grievous hurt attempted, sub-section (7) is the one to read, and sub-section (8) deals with such harm at night by any of several persons jointly concerned.

The Explanations to Sections 212, 240 and 249 include sub-section (6) among the provisions whose acts, if committed out of India, are brought within the word “offence” in those sections, as noted under sub-section (4). Under the BNSS First Schedule, sub-section (6) is listed as imprisonment for 14 years and fine, cognizable, non-bailable, triable by a Magistrate of the first class. It is not compoundable. The corresponding old provision, IPC 458, had the same fourteen-year maximum, expressed as “by night”.

(7) Causing grievous hurt, or attempting to cause death or grievous hurt, whilst committing

Sub-section (7) is about harm caused during the offence. It applies to whoever, whilst committing lurking house-trespass or house-breaking, either (i) causes grievous hurt to any person, or (ii) attempts to cause death or grievous hurt to any person. The punishment is imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and also liability to fine. Unlike sub-sections (2), (4), (6) and (8), it contains no reference to the time of day, so the offence can be committed by day or by night.

“Grievous hurt” is defined by Section 116, which designates eight kinds of hurt only as grievous: emasculation; permanent privation of the sight of either eye; permanent privation of the hearing of either ear; privation of any member or joint; destruction or permanent impairing of the powers of any member or joint; permanent disfiguration of the head or face; fracture or dislocation of a bone or tooth; and any hurt which endangers life or which causes the sufferer to be, during the space of fifteen days, in severe bodily pain or unable to follow his ordinary pursuits.

There are two independent triggers. The first requires that grievous hurt actually be caused. The second requires an attempt, and the attempt may be to cause death or to cause grievous hurt. The words “whilst committing” tie the harm to the course of the lurking house-trespass or house-breaking. Sub-section (7) does not use the word “voluntarily”, which sub-section (8) does (the word is defined in Section 2(33)); this page does not go beyond the words of each sub-section. Sub-section (7) is directed at the person who causes or attempts the harm, while sub-section (8) reaches every person jointly concerned, but only where the offence is committed after sunset and before sunrise.

Under the BNSS First Schedule, sub-section (7) is listed as imprisonment for life, or imprisonment for 10 years, and fine, cognizable, non-bailable, triable by the Court of Session. It is not compoundable. As noted under sub-section (4), the Explanations to Sections 212, 240 and 249 list this sub-section too. The corresponding old provision, IPC 459, used the same words and the same punishment.

(8) Jointly concerned persons, where death or grievous hurt is caused or attempted after sunset and before sunrise

Sub-section (8) deals with a group. It applies where, at the time of committing lurking house-trespass or house-breaking after sunset and before sunrise, any person guilty of that offence shall voluntarily cause or attempt to cause death or grievous hurt to any person. In that event, every person jointly concerned in committing that lurking house-trespass or house-breaking is punishable with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and also with fine.

There are three things to identify. First, the lurking house-trespass or house-breaking must have been committed after sunset and before sunrise. Second, at the time, a person guilty of that offence must voluntarily cause, or attempt to cause, death or grievous hurt to any person; “voluntarily” has the meaning given in Section 2(33) (causing an effect by means whereby he intended to cause it, or by means which, at the time of employing them, he knew or had reason to believe to be likely to cause it), and “grievous hurt” is defined in Section 116. Third, the punishment reaches every person jointly concerned in committing the lurking house-trespass or house-breaking, and not only the one who caused or attempted the harm.

The phrase “jointly concerned” is not defined in Section 2. Section 3(5) separately provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of them is liable for that act in the same manner as if it were done by him alone; the two provisions are worded differently and this page does not equate them. The corresponding old provision, IPC 460, used the same words in the same structure, worded “by night”.

Under the BNSS First Schedule, sub-section (8) is listed as imprisonment for life, or imprisonment for 10 years, and fine, cognizable, non-bailable, triable by the Court of Session. It is not compoundable. The Explanations to Sections 212, 240 and 249 list this sub-section among the provisions whose acts, if committed out of India, are brought within the word “offence” in those sections.