1. These two cases are connected and are based on two separate applications to this Court to exercise its power of revision under Section 439. It is not understood why the office should have entitled one a miscellaneous case and one a revision case. The facts which are necessary to explain these applications before me are these. On the 26th September, 1926, at 9 A.M. the Kotwal of Ghazipur, by name Ram Karan Singh and Suraj Nath Singh, the Excise Inspector having obtained a warrant to search the house of one Mohit Khan for illicit opium proceeded to the block of building in which that house is situated and in which are said to be situated also the houses of Farrukhsher Khan and Musammat Amina Bibi. The Kotwal directed some constables to scale a wall. There is disagreement as to what wall it was or as to whose property was invaded thereby. A dispute arose in the house inside the block of building and Farrukhsher Khan was injured. The Police instituted a case against Farrukhsher Khan and other persons for rioting and possession of opium and for causing hurt to the Police Officers. Subsequently Farrukhsher Khan filed a criminal complaint complaining against the Police of house breaking and other offences and later on Musammat Amina Bibi and two others filed a similar complaint. I may mention that 1 regard as immaterial the sections of the Indian Penal Code which these persons stated to be applicable to the offences complained of. Both these complaints against the Police were entertained, after some further enquiry, by the Magistrate who had taken congnizance of the Police complaint. The two cases against the officers were combined (so far as I can see very properly) in one case. The Magistrate heard the evidence for the prosecution, and recorded the statements in explanation of the accused officers. He then framed charges but refused to frame a charge under a. 459, Indian Penal Code, namely, the offence designated as 'grievous hurt caused while committing house trespass or house breaking.' The section in full is as follows:
Whoever, whilst committing lurking house trespass or house-breaking, causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, shall be punished with transportation for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
2. An offence under this section is triable exclusively by the Court of Sessions. In the criminal revision case before me, No. 169 of 192, the application is that the High Court should direct a charge to be framed under this section and the case to be committed to the Court of Sessions. In the connected application No. 57 of 1927 the application is that, having done so the High Court should also order the Police case against the complainants to be committed to the Court of Sessions.
3. The question then is whether the evidence read along with the explanations of the accused, in the case against the Police, justified and required a finding by the Magistrate that prima facie an offence under Section 459 had been committed. If it did so, it is clear that the Magistrate should have committed to the Court of Sessions as he had no jurisdiction to try such an offence himself.
4. The Magistrate has put on the record his reasons for holding that no offence under Section 459 could be held to be established. His reason is this in brief. The offence of house-breaking is complete when entry into the house is effected and any grievous hurt, subsequently caused by the persons breaking into a house, cannot be said to be grievous hurt caused while they were committing the house breaking. I was at first disposed on reading the section to hold that this was taking too narrow a view of the language of it. But, on consideration of the section with the connected sections of the Indian Penal Code, I think that the Magistrate was correct in his view. House-breaking as defined in Section 445 is an aggravated form of criminal trespass as defined in Section 441. One form of criminal trespass under Section 441 is the act of entering 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. If the property is used as a human dwelling, the offence of criminal trespass becomes the offence of house-trespass. (Vide Section 442). If this offence of house-trespass is further aggravated by an entry or departure of a forcible nature, then the entry passes from an offence merely of criminal trespass to the more serious offence, of house-breaking. (Vide Section 445). The offence of house-breaking may be further aggravated by causing grievous hurt to any person whilst committing the house-breaking. The question then is when is a house breaking complete? Having reference to what has been stated by me, it is clear that it is complete when the act of entering into the house is complete. Section 442 shows that entry is completed by the introduction of any part of the trespasser's body into the house. In its origin too the word 'trespass' meant the momentary act of 'passing over.'
5. So far the matter appears to me plain sailing. A doubt, 'however, is created by the fact that the definition given above of criminal trespass is not complete. The second Clause of Section 441 defines another form of criminal trespass arising from unlawfully remaining on property, after having lawfully entered, with intention to intimidate, insult or annoy or to commit an offence. This second offence prima facie, would appear to continue until the person left the property. If this were so, the view of the Magistrate as to the meaning of Section 459 would appear open to the following objection. If a person made an unlawful entry into a house and while in the house caused grievous hurt to a person he would not be liable for the aggravation of trespass defined in Section 469. If, however, he entered lawfully but remained on unlawfully and before departure from the house caused hurt, he would then be liable under Section 459. An unsatisfactory consequence of this reasoning would follow. The man who committed house trespass by breaking into a house and before leaving caused grievous hurt would not be guilty of the aggravated form of the offence specified in Section 459, while the man who committed criminal trespass by remaining on unlawfully in the house, after having entered therein lawfully, would, if he caused grievous hurt before leaving the premises, be guilty of this special offence. The result would appear absurd. I think that this absurdity can be avoided by adopting either of the two following views. One is that Section 459 will never apply to a case where the basic offence of criminal trespass is that from of criminal trespass which results from remaining on in the house and will only apply to that form which results from entering into a house. The alternative view, which in practice has the same effect, is that the offence of remaining on is not to be deemed to continue until the premises are vacated but should be held to be complete as soon as the offender has indicated an intention by remaining on to intimidate, insult or annoy the occupant or to commit an offence.
6. Criminal Statutes have to be construed strictly in favour of the accused and, whatever view may be adopted to meet the difficulty mentioned, I consider that there is sufficient doubt arising from the language of the Code to prevent it being held that a person who has completed a forcible entry into a house should be deemed, by reason of violence subsequently used, to have used violence while house breaking. For this reason I hold that the Magistrate was justified in refusing to commit the accused on a charge under Section 459.
7. The Magistrate then had jurisdiction to try the case himself, without committing to Sessions. Nor in my opinion was it so undesirable for him to do so as to call for interference in revision. I dismiss both these applications and direct that the records be returned and the trial proceed.