IPC Section 446: House-breaking by Night - Definition, Punishment and Current BNS Law
Section 446 of the Indian Penal Code, 1860 defined house-breaking by night as house-breaking committed after sunset and before sunrise. The IPC was repealed with effect from 1 July 2024, and the Bharatiya Nyaya Sanhita, 2023 (BNS) now governs offences committed from that date, subject to applicable savings and transitional rules.
What did Section 446 IPC provide?
The statutory text of Section 446 was:
Whoever commits house-breaking after sunset and before sunrise, is said to commit "house-breaking by night".
The provision was a definition, not an independent punishment clause. The circumstances of the act determined which punishment provision applied, including former IPC Sections 456, 457, 458, 459 or 460, as appropriate.
Essential ingredients of house-breaking by night
- House-trespass: The conduct must first satisfy the legal requirements of house-trespass.
- House-breaking: Entry into, or departure from, the premises must occur through a method specified under former IPC Section 445, such as opening a lock or using a passage not intended for human entry.
- Night-time: The house-breaking must take place after sunset and before sunrise.
Merely entering premises at night does not automatically establish house-breaking. The statutory elements of house-trespass and one of the specified methods of entry or departure must also be established.
Current law under the Bharatiya Nyaya Sanhita, 2023
BNS Section 329 - Criminal trespass and house-trespass
Section 329 addresses criminal trespass and house-trespass. In broad terms, house-trespass involves criminal trespass in a building, tent or vessel used as a human dwelling, a place of worship, or a place for custody of property.
BNS Section 330(2) - House-breaking
Section 330(2) sets out six specified ways in which a person committing house-trespass may enter or leave premises so that the act amounts to house-breaking. These include making an entry passage, using an unintended passage, improperly opening a passage, opening a lock, using force or threats, or unfastening a passage known to have been secured.
BNS Section 331(2) - House-breaking after sunset and before sunrise
Under Section 331(2), a person who commits lurking house-trespass or house-breaking after sunset and before sunrise is punishable with imprisonment of either description for up to three years and fine.
Punishment under BNS Section 331
| Provision | Conduct | Maximum punishment |
|---|---|---|
| 331(2) | Lurking house-trespass or house-breaking after sunset and before sunrise | 3 years and fine |
| 331(4) | Night-time lurking house-trespass or house-breaking to commit an offence punishable with imprisonment | 5 years and fine; up to 14 years if intended offence is theft |
| 331(6) | Night-time lurking house-trespass or house-breaking after preparation for hurt, assault or wrongful restraint | 14 years and fine |
| 331(8) | Specified death or grievous-hurt conduct by persons jointly concerned in night-time lurking house-trespass or house-breaking | Life imprisonment, or up to 10 years and fine |
Other subsections of Section 331 may apply according to the facts. The punishment is not determined by the time of entry alone.
Illustrative example
A person unlawfully opens a locked door to enter a dwelling at midnight with the necessary criminal intent. Depending on the proven facts, the act may constitute house-breaking after sunset and before sunrise under BNS Sections 330(2) and 331(2). If the person entered intending to commit theft, the more specific provision in Section 331(4) may apply.
Does IPC Section 446 still apply?
The BNS came into force on 1 July 2024 and repealed the IPC through Section 358, subject to savings. The applicable substantive criminal law ordinarily depends on when the alleged act occurred. Article 20(1) of the Constitution also protects against retrospective conviction for conduct that was not an offence when committed and against a greater penalty than the law then permitted. Proceedings involving earlier conduct require consideration of the relevant savings and procedural provisions.
Frequently asked questions
Is IPC Section 446 a punishment section?
No. Section 446 defined house-breaking by night. Punishment under the former IPC depended on the applicable penal provision and facts of the case.
What is the current BNS provision for house-breaking at night?
Read BNS Section 330(2) for the definition of house-breaking and Section 331(2) for the basic punishment for house-breaking after sunset and before sunrise. More serious circumstances are covered by other subsections of Section 331.
Is night-time house-breaking different from ordinary house-breaking?
Yes. The after-sunset and before-sunrise element is expressly relevant to punishment under BNS Section 331(2) and certain aggravated provisions.
Official legal references
- Bharatiya Nyaya Sanhita, 2023 - official India Code PDF (Sections 329, 330, 331 and 358).
- National Crime Records Bureau - IPC and BNS section correspondence table.
- India Code - official repository of Central Acts.
This article provides general legal information. Application of a particular section depends on the alleged conduct, the date of the incident, and the evidence.