Every person jointly concerned in committing such house-trespass or housebreaking shall be punished in the manner provided in Section 460. A person who actually commits murder in the course of committing house-break will attract penalty under Section 302. The words “at the time of the committing of” are limited to the time during which the criminal trespass continues which forms an element in house-trespass, which is itself essential to house-breaking and cannot be extended so as to include any prior or subsequent time. If the offender causes grievous hurt while running away, he will not be punishable under Section 460. The provisions of Section 460 can be invoked against only those who have actually committed lurking house-trespass at night and not against those who have merely accompanied their associates. The points requiring proof under Section 460 are: 1.
Two or more persons were jointly concerned in committing lurking house trespass by night or house-breaking by night; 2. They or some of them committed such offence; 3. One of them caused or attempted to cause death or grievous hurt; 4. He did so whilst engaged in committing such lurking house- trespass by night or house-breaking by night. The offence under Section 460 is cognizable and a warrant should, ordinarily, issue in the first instance. It is both bailable and non-compoundable and exclusively triable by the Court of Session.