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  • House Trespass and House Breaking 
  • Ingredients of House Trespass and House Breaking 
  • Punishment of House Trespass and House Breaking 
  • Difference between House Trespass and House Breaking
  • Judgements


There are two legal phrases for entering someone else’s property without permission which are house trespass  and house breaking. Entering another person’s home without authorisation is known as house trespassing. Usually, it’s coercing someone into leaving their house against their will, lying to them, or just being rude. 

On the other hand, house breaking, often called as home invasion, is the unlawful entry into a home with the intention of committing a crime there, such as assault, theft, or destruction. Breaking into a house usually entails forcing entry, such as picking a lock or shattering a window, hence house breaking is regarded as a more serious offence than house trespass.


A person who enters property owned by another with the intent to commit an offence, or who enters lawfully but stays there with the intention of intimidating, insulting, or annoying any person in possession of the property, or who enters the property with the intent to commit an offence, is considered to have committed “criminal trespass,” as defined by section 441 of the Indian Penal Code. 

Therefore, it follows that entering someone else’s private property illegally without their permission or staying there with the purpose to commit a crime is criminal trespass. The purpose of criminal trespass laws is to protect individual’s enjoyment of their private property from outside interference.

House Trespass:

House Trespassing is defined by section 442 of the Indian Penal Code as the criminal offence of entering or staying in any structure, tent, or vessel that is utilised as a place of worship, a place of residence for people, or a location for property custody. A site of human habitation need not always be where the defendant resides permanently, transitory locations such as train platforms or schools might also qualify as human habitations. A fence, on the other hand, cannot qualify as a human residence because a building needs walls or some other form of security in order to be considered a human dwelling. Trespassing into a residence is always criminal trespassing, not the other way around, since this offence is a more serious version of it. House trespassing cannot occur if the defendant is not the legitimate owner of the property because it entails breaching someone’s possession of property.

Lurking House Trespass:

The Indian Penal Code Section 443 addresses lurking house trespass, a more severe form of house trespass. According to the clause, the offence is defined as engaging in home trespassing and taking reasonable steps to hide the offence from anybody who has the authority to bar the trespasser from entering the building that is the subject of the trespass. In Prem Bahadur Rai vs. State, the court decided that no section 443 accusation could be brought unless the accused took proactive measures to hide his presence. Therefore, the following would be included in a lurking house trespass:

  • Trespass
  • House Trespassing
  • Hiding the house trespass from the person who is entitled to forbid the trespasser.


  • Entry into someone else’s Property:

To commit the crime of criminal trespass, the defendant must actually enter the private property of another individual. If the accused does not physically enter the other person’s private property, there cannot be a trespass.

In the Ghasi vs. Emperor case, the accused persisted in building on the complainant’s property despite multiple warnings from the complainant. However, because the accused did not physically enter the premises, the court determined that there was no criminal trespass in the meaning of section 441 of the Indian Penal Code committed by the accused.

  • Property:

Movable and immovable property are included in the definition of “property,” but incorporeal or intangible property is not. The same penalties would apply for breaking into someone else’s car or other transportable property as they would for breaking into someone else’s home or other immovable property.

In Dhannonjoy vs. Provat Chandra Biswas, the court determined that the accused had violated Section 441 of the Indian Penal Code by trespassing after beating the complainant, taking possession of his boat, and driving off.

  • Possession of Property:

It is the plaintiff’s property, not the trespasser’s or anybody else’s , that should be in doubt. To prosecute a trespasser for criminal trespass, one need only prove their possession for the victim to be the property’s owner. The complete rights and claims to an object are referred to as “ownership.” 

Possession refers more to the actual physical control of an object than it does to the ownership of the property by the owner. The possessor need not be present at the time of the trespass, it would still be considered trespassing if they were not in possession 

  • Intentions:

In order to enter or remain on someone else’s property without authorisation, there must be a deliberate intent to conduct an offence or to threaten, offend, or annoy the owner. It wouldn’t be considered criminal trespass if it could be demonstrated that the defendant did not intend to do so.

In the case of Nishi Kant Das vs. State of Assam, the court determined that merely entering someone else’s property does not constitute criminal trespass with the meaning given in section 441 of the Indian Penal Code.


It falls under the Indian Penal Code Section 448. This crime is viewed as an invasion of a person’s home security and privacy. There is a one year jail sentence, a fine, or both as possible punishments for the section. 


  • House breaking, which involves forcing entry into someone’s home, is a more severe kind of house trespassing. Six ways are listed in section 445 of the Indian Penal Code for house breaking to occur:
  • Through a route that the house breaker himself built.
  • Using any route that the intruder is the only one using.
  • Via any doorway that has been opened to commit a house breaking crime that the owner of the residence did not wish to be open.
  • By releasing any lock 
  • By entering  or leaving any passageway that is secured against such an entrance or exit.
  • By employing unlawful force at either point of entry or departure.

The phrase “fasteners” connotes more than just being closed, just pushing back door shutters would not qualify as breaking and entering. The first three methods involve employing passage,  which is not the standard method of entry or leave, to get entry, while the final three methods involve employing passage, which is not the standard method of entry or leave, to get entry, while the final three methods involve using force to gain entry.

House Breaking By Night:

Section 446 of the Indian Penal Code governs house breaking that occurs after sunset but before sunrise, which is deemed an aggravating form of the crime. Section 456 stipulates that this offence is punishable by a fine and a maximum sentence of three years in jail.

Dishonesty Breaking Open Receptacle Containing Property:

Section 461 of the Indian Penal Code defines the offence of dishonestly breaking open a container carrying property and outlines the associated penalties. Anyone who smashes or opens a container or receptacle used as a storage place, whether dishonesty or with the intention of causing harm, is punished under the aforementioned provision. The offence is punishable by up to two years in prison, a fine, or both, and is cognizable, non-bailable, and triable by any magistrate. The components would be:

  • A closed container or receptacle was present.
  • It either contained property or the accused thought it contained property.
  • The accused dishonestly and purposefully broke open the receptacle with the intention of causing mischief.

The word “receptacle” refers to a wide range of containers, encompassing not only closed packages, safe boxes, and chests but also rooms or portions of room like go-downs and warehouses. The sole requirement is that the vessel be sealed with a bolt or chain or otherwise fixed. If the container is damaged or unfastened with dishonest care in order to steal or commit any other type of mischief, the crime is considered to have been committed.


  • It is an act of entering a building or other structure without authorisation, whether by forceful means, coercion, or other means.
  • Entering the property with the aim to steal anything or commit a felony.
  • Using force to get past security measures like locks, windows, doors, or other barriers.
  • The illegal entry must take place in a home, residence, or other structure where people are likely to anticipate security and privacy.


In general, house breaking is addressed by section 445 of the Indian Penal Code, which stipulates that anyone found guilty of house trespassing faces a maximum sentence of three years in jail of any kind, a fine, the punishment may include life in prison or a sentence that may not exceed ten years if the offence is committed by someone who is in possession of a lethal weapon.


  • Intent:

House Trespass: The goal of the intruder entering the property is either to commit a crime or to intimidate  upset, or disturb the owner of the property. 

House Breaking: Breaking and entering occurs when an individual enters a home with the aim to steal, damage, or carry out any other criminal activity.

  • Entry:

House Trespass: Entry may occur peacefully or without the need for physical force.

House Breaking: It entails smashing or prying open a door, window, or other structure to obtain unauthorised access.

  • Criminal Intent:

House Trespass: This offence may not have the intention of committing a major crime, yet it may still be to offend or irritate.

House Breaking: The particular goal is to carry out a criminal offence, including stealing or vandalism.

  • Severity of Offense:

House Trespass: It is seen as a less serious offence than house breaking in terms of severity.

House Breaking: Because of the criminal intent and the use of force to enter, this offence is regarded as more serious.

  • Punishment:

House Trespass: The IPC punishes it, however the sentences are typically less severe than those for breaking into a property.

House Breaking: The IPC stipulates that this offence has heavier penalties, which depending on the circumstances of the case, may involve fines, jail time, or both.


Satrughana Nag vs. State of Odisha:

In this instance, the appellant broke into the respondent’s home at night and attempted to undress, but her brothers intervened to save her when they heard sounds coming from the room. The judge at the District Court took cognizance of the criminal offence under Section 457, which was charged in the complaint.

The High Court reviewed the section 457 offence while considering the appeal. It concluded that although a house trespass at night does not automatically constitute a lurking-house trespass, the trespasser must actively conceal the entry, in this case, no such concealment occurred. Furthermore, there was no proof of a house breaking crime since the bamboo that was used to close the door of the house was not secured and could be opened from the outside.

The court determined that this constituted a violation of section 448 of the IPC, which penalises house trespassing.

Biswajit Paul vs. State of Assam:

The petitioner was being forced off his farm by a gang of persons brandishing sticks, spades , and other weapons. Disappointed, the petitioner took the case to the High Court of Gauhati. The petitioner filed a case in the District Court for several offences, one of which being criminal trespass under the IPC. The District Court dismissed all of the allegations. 

According to the court, in order to successfully prosecute a trespass allegation, it is necessary to demonstrate that someone gained unauthorised access to property owned by another person and that the goal of the unlawful entry was either to conduct a crime or to threaten, harass, or upset the property owner. However, there was no evidence of ownership, and an attempt to determine ownership was unsuccessful. Because there is insufficient evidence to support the trespassing factors indicated above, the appeal was denied. 

Similar ruling were made by the Delhi High Court in the Jagdish Kumar case and the Allahabad High Court in Pawan Kumar vs. State of UP, which likewise considered ownership of the trespassed property but did not find the act to be criminal trespass under the Indian Penal Code. 

Hindustan Motor Finance Corporation Ltd. Vs.  Superintendent of Police:

The workers of the aforementioned corporation, who were fired because the company lacked the necessary funds, stormed into the factory and threatened the officers there. They also threatened to take their lives to force the company’s officials to comply with their demands. 

The company’s officials then called the police for assistance because the workers would not leave and were a nuisance. However, the police did not take any action, thus the writ petition was then submitted to the Madras High Court.

In this instance, the court addressed the issue of whether the employee’s action of remaining on the property after work hours and threatening a corporate official constituted criminal trespass, whether they had been fired or had been employed at the time. The High Court of Madras, drawing from the rulings of the Supreme Court in the cases of Chelpark Company Ltd. vs. The Commissioner of Police and Mysore Machinery Ltd. Vs. State of Mysore, determined that remaining on the factory premises beyond working hours is completely unwarranted, and the methods employed by the workers to exert pressure on the management to comply with their demands were illegal, furthermore, their prolonged presence on the premises was intended to cause offences, insult, and annoyance, making it a violation of section 441 of the Indian Penal Code.

Nasiruddin vs. State of Assam:

The accused used lethal weapons on the woman’s son and husband after breaking through the front door of her home to kidnap her. The accused was charged under Section 457. In this case, the Supreme Court ruled that in order for trespass to be covered by this section, it must be either house breaking or lurking house trespassing at night, meaning that the trespasser must have taken precautions to hide his presence at night, or it must have been done with the intent to commit an offence that carries jail sentence. It is because the accused broke into the house in order to kidnap the woman, they were accountable under this clause.


In conclusion, the difference between breaking into a house and trespassing on it is determined by how one enters the property. Unauthorised entry into a house without the use of force is referred to as house trespassing, and it usually carries less severe punishments like fines or community work.

On the other hand, breaking into a house with force is considered house breaking and is considered a more serious offence that is frequently subject to jail time. To ensure justice and protect property rights, the legal system must be able to distinguish between various offences and handle and decide cases of unauthorised access.

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