Section 447-448 IPC vs Section 329 BNS — Criminal Trespass and House-Trespass (IPC 441-448)

In India, Sections 329 to 331 of the Bharatiya Nyaya Sanhita, 2023 (BNS) replaced the criminal trespass provisions, Sections 441 to 448 of the Indian Penal Code, 1860 (IPC), on 1 July 2024. The definitions are unchanged in substance; the fines for criminal trespass and house-trespass rise to five thousand rupees (Section 329(3) and (4)).

At a glance

The CrPC First Schedule classified Sections 447 and 448 IPC as cognizable, bailable and triable by any Magistrate, so the classification is unchanged.

The aggravated forms that sit next to this group moved as follows: house-trespass to commit an offence (IPC 449 to 451) is now Section 332(a) to (c); house-trespass after preparation for hurt (IPC 452) is Section 333. The punishments for lurking house-trespass and house-breaking (IPC 453 to 460) are Section 331(1) to (8).

What changed

• Minor edit — Section 329(1) (IPC 441): the definition of criminal trespass is word for word the same; the quotation marks around "criminal trespass" and two commas are dropped.
• Minor edit — Section 329(2) (IPC 442): same definition of house-trespass and the same Explanation, "The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass"; quotation marks dropped.
• Modified — Section 329(3) (IPC 447): fine "which may extend to five hundred rupees" becomes "five thousand rupees"; imprisonment stays at up to three months.
• Modified — Section 329(4) (IPC 448): fine "which may extend to one thousand rupees" becomes "five thousand rupees"; imprisonment stays at up to one year.
• Minor edit — Section 330(1) (IPC 443): same definition of lurking house-trespass; quotation marks dropped.
• Minor edit — Section 330(2) (IPC 445): the six ways of house-breaking are relettered (a) to (f) instead of "First" to "Sixthly". "In any of such six ways, that is to say" becomes "in any of the following ways, namely". The Explanation (out-houses with an internal communication) and Illustrations (a) to (h) are carried over.
• Omitted — IPC 444 and 446: there is no separate definition of "lurking house-trespass by night" or "house-breaking by night". Instead, Section 331(2), (4), (6) and (8) each say "after sunset and before sunrise", the words the IPC definitions used.

Statutory text (relevant extract)

Extract, Section 447 IPC (repealed from 1 July 2024):

Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

Extract, Section 329 BNS, sub-sections (1) and (3):

(1) Whoever enters into or upon property in the 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 into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person or with intent to commit an offence is said to commit criminal trespass.

(3) Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five thousand rupees, or with both.

How it works — the ingredients

Criminal trespass (Section 329(1)) can be committed in two ways.

1. Unlawful entry: entering into or upon property in the possession of another, with intent to commit an offence, or to intimidate, insult or annoy any person in possession.
2. Unlawful remaining: having entered lawfully, unlawfully remaining there with intent to intimidate, insult or annoy any such person, or to commit an offence.

Both limbs turn on possession — the property must be "in the possession of another" — and on intent. On a reading of the text, ownership alone is not the test, and neither is a mere dispute over title.

House-trespass (Section 329(2)) is criminal trespass by entering into or remaining in:

• a building, tent or vessel used as a human dwelling; or
• a building used as a place for worship, or as a place for the custody of property.

Under the Explanation, introducing any part of the body is enough to be "entering".

Lurking house-trespass (Section 330(1)) adds precautions to conceal the house-trespass from someone with a right to exclude or eject the trespasser.

House-breaking (Section 330(2)) is house-trespass where entry or exit is made in one of six ways:

• (a) through a passage the trespasser or an abettor made;
• (b) through a passage not intended for human entrance, or reached by scaling or climbing;
• (c) through a passage opened in a way the occupier did not intend;
• (d) by opening a lock;
• (e) by criminal force, assault or a threat of assault;
• (f) through a passage he knows was fastened and was unfastened by himself or an abettor.

Illustration (f): using Z's lost key to open Z's door is house-breaking.

Night-time aggravation (Section 331): lurking house-trespass or house-breaking attracts up to 2 years and fine (331(1)), or 3 years and fine "after sunset and before sunrise" (331(2)). The terms are higher where the purpose is an offence punishable with imprisonment (331(3)-(4)), or where preparation was made for hurt, assault or wrongful restraint (331(5)-(6)).

What this means in practice

For the person in possession

• Criminal trespass and house-trespass are cognizable, so under Section 175(1) BNSS the officer in charge of a police station may investigate without a Magistrate's order. The complaint should show who was in possession, how the accused entered or remained, and the facts showing the intent — an offence, or intimidation, insult or annoyance.
• Under Section 359(1) BNSS, the person in possession may compound Section 329(3), 329(4) and 332(c) (where the intended offence is not theft) without the court's permission. Section 320(1) CrPC allowed the same for Sections 447, 448 and 451 IPC. Lurking house-trespass and house-breaking under Section 331 are not listed, and Section 359(9) bars compounding except as the section provides.

For the accused and defence advocate

• Sections 329(3) and (4) are bailable; Section 331 offences are non-bailable.
• Intent is an element the prosecution must prove. Where the dominant aim of entry was something else, such as executing a warrant, Mathuri (below) held that criminal trespass was not committed; Section 329(1) repeats the words Mathuri construed.
• For house-trespass and the aggravated forms built on it (Sections 331 to 333), check whether the place was a dwelling, a place of worship or a place for the custody of property; Sonu Choudary (below) turned on this.

For those in Odisha: the India Code IPC text records an Orissa amendment (Orissa Act 22 of 1986) substituting Section 441 IPC. It added a limb for a person who, having lawfully entered, remains with the intention of taking unauthorised possession or making unauthorised use and fails to withdraw after written notice. Section 329(1) BNS has no such limb. No text read for this page says whether that State amendment has any counterpart after the IPC's repeal.

Judgments that still matter

Mathuri and Ors. v. State of Punjab, [1964] 5 S.C.R. 916 (1963 INSC 253) — 11 December 1963. P.B. Gajendragadkar and K.C. Das Gupta JJ. considered whether decree-holders who entered land to execute warrants of possession, after the warrants had expired, were criminal trespassers. The Court held that to establish entry "with the intent to annoy, intimidate or insult", "it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry". It is not enough that annoyance was a likely consequence known to the person entering; the court must consider whether something else was the dominant intention. Because the dominant intention was to execute the warrants, no criminal trespass was committed. The report does not show paragraph numbers.

Rash Behari Chatterjee v. Fagu Shaw & Ors., [1970] 1 S.C.R. 425 — 28 April 1969. S.M. Sikri, R.S. Bachawat and V. Ramaswami JJ. applied Mathuri and restored convictions under Section 447 IPC. The respondents had entered vacant land and begun construction two weeks after the appellant obtained possession through the civil court, following twelve years of litigation. The Court held that the appellant was in actual possession of the vacant land, and that "the law does not require that the intention must be to annoy a person who is actually present at the time of the trespass". It found no dominant intention other than to annoy. The report does not show paragraph numbers.

Sonu Choudary v. State of NCT Delhi, [2024] 11 S.C.R. 786 (2024 INSC 864) — 6 November 2024. Bela M. Trivedi and Satish Chandra Sharma JJ. set aside a conviction under Section 452 IPC (house-trespass after preparation for hurt) for an attack in a restaurant, while upholding the conviction under Section 324 IPC. The Court held that house-trespass within Section 442 is an essential ingredient of Section 452 (para 9). The restaurant "cannot be said to be either a place used for human dwelling or for worship or for the custody of the property", so the ingredients of Sections 441 and 442 were not made out (para 10). The case applied the IPC; Section 329(2) BNS repeats the words of Section 442, and Section 333 BNS repeats Section 452.

Which law applies to your case

Section 358(2) BNS keeps alive any penalty or punishment incurred under the IPC and allows proceedings to be instituted, continued or enforced "as if that Code had not been repealed"; on a reading of that provision, a trespass committed before 1 July 2024 is charged under Sections 441 to 448 IPC. Proceedings pending on that date continue under the CrPC (Section 531(2)(a) BNSS). Article 20(1) of the Constitution bars a penalty greater than the law in force at the time of the offence, so, on a reading of that Article, the higher fines in Section 329(3) and (4) cannot be imposed for earlier conduct. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNS equivalent of Section 447 IPC? Section 329(3) of the Bharatiya Nyaya Sanhita, 2023 replaces Section 447 IPC, and Section 329(1) replaces the definition in Section 441. Criminal trespass is punishable with imprisonment of either description up to three months, or fine up to five thousand rupees, or both; Section 447 IPC capped the fine at five hundred rupees.

What is the BNS equivalent of Section 448 IPC? Section 329(4) BNS replaces Section 448 IPC, and Section 329(2) replaces the definition of house-trespass in Section 442. House-trespass is punishable with up to one year, or fine up to five thousand rupees, or both; Section 448 IPC capped the fine at one thousand rupees.

Is criminal trespass cognizable and bailable under the BNSS? Criminal trespass under Section 329(3) BNS and house-trespass under Section 329(4) are cognizable and bailable, triable by any Magistrate, under the First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023. The CrPC First Schedule classified Sections 447 and 448 IPC the same way. Lurking house-trespass and house-breaking under Section 331 are non-bailable.

Is entering land in a civil dispute criminal trespass? Only if the entry is with intent to commit an offence or to intimidate, insult or annoy the person in possession, as Section 329(1) BNS requires. In Mathuri v. State of Punjab ([1964] 5 S.C.R. 916), the Supreme Court held that the intended annoyance, intimidation or insult must be the aim of the entry, not merely a known likely consequence. Entry by someone whose dominant aim was different, such as executing a warrant, was held not to be criminal trespass.

Does the person in possession have to be present for criminal trespass? No. In Rash Behari Chatterjee v. Fagu Shaw ([1970] 1 S.C.R. 425), the Supreme Court held that the law does not require the intention to be to annoy a person actually present at the time of the trespass. It restored convictions where the respondents entered vacant land two weeks after the owner obtained possession through the civil court.

Can a criminal trespass case be settled by compromise? Yes. Under Section 359(1) BNSS, criminal trespass (Section 329(3) BNS), house-trespass (Section 329(4)) and house-trespass to commit an offence (other than theft) punishable with imprisonment (Section 332(c)) may be compounded by the person in possession of the property, without the court's permission. Section 320(1) CrPC allowed the same for Sections 447, 448 and 451 IPC.

Which law applies to a trespass committed before 1 July 2024? Section 358(2) BNS saves penalties incurred under the IPC and lets proceedings continue as if the IPC had not been repealed, so on a reading of that text a trespass committed before 1 July 2024 is charged under Sections 441 to 448 IPC. On a reading of Article 20(1) of the Constitution, the higher fines in Section 329(3) and (4) cannot be imposed for earlier conduct.

Related

• Criminal trespass in a property dispute — BNS 329-334 vs IPC 441-462
• Theft: IPC 378-382 vs BNS 303-307
• Criminal intimidation: IPC 503-507 vs BNS 351
• Compromise in a criminal case — compounding under BNSS 359
• Police search of your home — videography under the BNSS
• IPC to BNS — master table
• Section 427 IPC vs Section 324 BNS — Mischief (IPC 425-427 and 440)

Sources

• Bharatiya Nyaya Sanhita, 2023 (Gazette text): Sections 329 to 333 and 358.
• Indian Penal Code, 1860 (India Code text): Sections 441 to 460, with the Orissa State amendment to Section 441.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 175, 359 and 531, and the First Schedule entries for Sections 329 to 333 BNS.
• Code of Criminal Procedure, 1973: Section 320 and the First Schedule entries for Sections 447 and 448 IPC.
• Constitution of India: Article 20(1).
• Judgments read in full text: Mathuri and Ors. v. State of Punjab (1964_5_916_931_EN.md); Rash Behari Chatterjee v. Fagu Shaw (1970_1_425_427_EN.md); Sonu Choudary v. State of NCT Delhi (2024_11_786_791_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.