Announced on December 25, 2023, the Bharatiya Nyaya Sanhita, 2023 has not yet been put into effect. With 20 chapters and 358 sections (compared to 23 chapters and 511 sections earlier), the new legislation aims to simplify the colonial criminal rules. Gender equality, national security, offenses against minors, and other factors are taken into consideration while modifying the rules. Section 329, which deals with “Punishment against house-trespass or housebreaking,” is one of the rules that has increased the fine amounts. Trespassing, or entering another person’s property without permission, is a complex legal issue with significant consequences for both invaders and property owners. Trespassing includes a variety of behaviors that can result in legal problems, conflicts, and even criminal charges, ranging from minor acts of unauthorized access to more significant infractions including harm or invasion of privacy. Before the Bharatiya Nyaya Sanhita, 2023 (BNS) was passed, criminal trespassing was covered under Section 441 of the Indian Penal Code, 1860. Anyone who enters or is on someone else’s property with the intent to commit an offense or to intimidate, insult, or annoy someone who owns that property, or who has entered or is on that property lawfully and then unlawfully stays there with the intent to commit an offense or to intimidate, insult, or annoy someone who has that property, is considered to have committed criminal trespass.

Criminal trespassing is defined as entering or being on someone else’s property with the intent to commit an offense or to intimidate, insult, or annoy someone who owns that property, or as entering or being on someone else’s property lawfully and then staying there illegally with the intent to commit an offense or to intimidate, insult, or annoy someone who owns that property. Criminal trespassing has been established as a felony to ensure that residents may enjoy their land without outside intervention. Under Section 329 of the BNS, the laws governing home trespass and criminal trespass, as well as the associated punishments, have been divided into four separate parts.

Essential Elements of Criminal Trespass are the following:

• Entering or remaining unlawfully on real property owned by another.
• entry is lawful, continuing unlawfully on such property.
• Commit an offence.
• Intimidate the owner of the property.
• Entry: There must be a physical entry into the property which is in possession of another person.
• Property in Possession of Another: The property must have someone other than the trespasser.
• The intention- The person entering or remaining on that property shall do so either with the intent to commit an offense or to intimidate, insult, or annoy that person.

It is important to note that trespassing is generally a civil wrong and restitution damages are awarded. However, in the case of trespass committed with criminal intent, it is also turned into a criminal offense triable under the IPC. The IPC distinguishes simple trespass and criminal trespass, the latter requiring the afore-stated criminal intent. There can be a case of imprisonment, fine, or both, depending on the offense’s seriousness and circumstances.

Section 329(1) and 329(2) deals with the punishment of lurking house trespass or house-breaking. Under Section 329(3), BNS had increased the punishment of criminal trespass to imprisonment of either description for three months or a fine extending up to five thousand rupees, or both. Likewise, under BNS Section 329(4), house trespass punishment has been enhanced by providing it with up to one year imprisonment of either description, or fine up to five thousand rupees, or both.

Section 330 of BNS defines lurking house trespass and house-breaking. According to that, house-breaking is said to take place either when a person enters a house in any of six specified ways or while staying in it to commit some crime in any of six specified ways afterward. Six specified ways are:

1. Wherein he enters or quits by a passage made by himself, or by any abettor of the house-trespass, to the committing of the house-trespass;
2. Whereby he enters, or quits by any passage not intending by any person, other than himself or an abettor of the offense, for human entrance; or whereby he enters, or quits through any passage which he hath gained to himself by scalading or climbing over any wall or building;
3. whoever, either by himself or any abettor, enters or quits any such dwelling-house as aforesaid without breaking, by forcing any lock to the committing of the house-trespass by any means by which that passage was not intended by the occupier of the house to be opened,
4. whoever for that purpose opens any lock to the committing of the house-trespass or the quitting of the house after a house-trespass;
5. If he affects his entrance or departure by violence, or by actual assault, or by putting any person in apprehension of bodily harm;
6. If he enters or quits by any passage which he knows to have been shut against such entrance or departure, and to have been opened by himself or an abettor of such house-trespass.

Section 331- Trespass or breaking of a house is punishable differently according to circumstances. When such trespass or breaking occurs during the daytime, the offender can receive imprisonment up to two years besides a fine. However, if the act takes place between sunset to sunrise, the punishment can be even more stricter with imprisonment for up to three years along with a fine. Besides that, if the trespass or breaking is done to commit an offense liable to imprisonment, for instance theft, then the sentence is enhanced. The offender may face up to three years imprisonment within the day and five years within the night of imprisonment with the possibility of extended sentence if there is intent for theft. Moreover, if the person in charge of the property commits or threatens to cause some form of harm while trespassing or breaking, he may face imprisonment for up to ten years during the day or up to fourteen years during the night, along with a fine. And causing grievous hurt or attempting to cause death during the trespass or breaking may lead to life imprisonment or imprisonment for up to ten years, plus a fine. The term “night” in Section 331 relating to house trespass and housebreaking has been replaced with “after sunset and before sunrise” under the BNS.

Lastly, section 332 offers that when any person opens a locked receptacle intending to commit mischief, believing there is something of value contained therein, with intent to steal or commit mischief, he can be imprisoned for up to two years, be fined or undergo both. If such a person was entrusted with the receptacle but without the requisite authority to open it but still opened it with the intent to deceive or did so dishonestly, he may be imprisoned up to three years, be fined, or undergo both.

The new legislation is trying to consolidate the offenses given under the IPC with a more modern-day approach. It also breaks the barrier of gender-friendly provisions; therefore, when BNS is implemented, it will create a stricter framework against the violation of such offenses.