B.P. Beri, J.
1. This is a reference made by the Additional Sessions Judge No. 2, Jodhpur recommending that the order of the Additional Munsiff Magistrate No. 2, Jodhpur dated 20th April, 1966, whereby he committed Bhanwarlal for facing trial under Section 459 of the Penal Code, be quashed as no offence under that section could be made out, and chat the applicant may be tried by the learned Magistrate.
2. The circumstances which it is necessary to notice in order to decide this important and interesting question briefly stated are these: At about 4a.m. on the 14th June, 1959 Mat. Parbati a young widow was sleeping on the terrace of her house and heard the footsteps of some one which disturbed her sleep and she noticed petitioner Bhanwarlal and one Shrikishen standing by the side of her cot. They demanded sexual intercourse from her and when she declined to oblige Bhanwarlal inflicted a dagger blow on her head and ran away. Shrikishen also inflicted a few knife blows on this woman. A report of the occurrence was lodged with the police but after investigation the police gave a final report. Consequently Mst. Parbati instituted a complaint under Sections 307, 458, 323 and 324 of the Penal Code on 8th September, 1959. A case under Sections 324 and 457 of the Penal Code was registered against Bhanwarlal and Shrikishen. Proceedings against Shrikishen were dropped as he could not be served.
The trial proceeded against Bhanwarlal and he was convicted on 23rd October, 1981 under Sections 326 and 458 of the Penal Code. The learned Sessions Judge, Jodhpur by his order of 17th February, 1962 acquitted him on appeal. The High Court on an appeal against acquittal remanded the case for retrial. Charges under Sections 326 and 457 of the Penal Code were framed against the petitioner and the evidence of the parties was closed on 23rd March, 1966. After part of the arguments were heard the complainant urged that charge against Bhanwarlal should be framed under Section 459 of the Penal Code and with this submission the learned Magistrate agreed and framed a charge under that section and since it was exclusively triable by the Court of Session he committed the petitioner to face his trial in that Court.
By transfer the case came before the Additional Sessions Judge No. 2, Jodhpur. Before the said learned Judge an argument was raised on behalf of the accused that the facts as disclosed by the prosecution did not make out a case under Section 459 of the Penal Code and his commitment order was, therefore, highly unjust and improper. This argument found favour with the learned Additional Sessions Judge According to his inter, pretation the word 'whilst' occurring in Section 459 of the Penal Code persuaded him to hold that the offence of house breaking was complete as soon as an entry into the house was effected and any grievous hurt subsequently caused by the person breaking into a house could not be said to be grievous hurt caused while the accused was committing the house breaking. He has accordingly made the recommendation that the order of commitment be quashed.
3. Mi. Bhimraj appearing for applicant Bhanwarlal supports the reference. He relies on Queen Empress v. Ismail Khan (1886) ILR 8 ALL 649, Sed Rasul v. Emperor AIR 1917 Lah 319, Muhammad v. Emperor AIR 1921 Lah 94 and Said Ahmad v. Emperor AIR 1927 ALL 536. Mr. Utsavlal appearing for Mst. Parbati opposes the reference and has placed reliance on Chatur v. King Emperor (1911) 8 ALL LJ 574, Imamudin v. The Crown (1876) 11 Pun Re No.17 (Cr) and Enayat Ali v. Emperor 38 Cal WN 446 : AIR 1934 Cal 557.
4. In order to appreciate the arguments advanced by Mr. Bhimraj and accepted by the learned Additional Sessions Judge a broad survey of the Offences included under the sub-head 'criminal trespass' in the Indian Penal Code will be profitable.
5. Section 441 of the Penal Code defines 'criminal trespass' as follows:
Whoever enters into or 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,
or, having lawfully entered into or upon such property unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence,
is said to commit 'criminal trespass'.
6. 'Entry' into or 'unlawfully remaining upon the property in the possession of another with any of the intentions indicated in the section amounts to 'criminal trespass' which by itself is punishable lightly unless it is attended with aggravating circumstances. The authors of the Code say that.
These aggravating circumstances are of two sorts Criminal trespass may be aggravated by the way in which it is committed. It may also be aggravated by the end for which it is committed.
See Note N.P. 168 quoted from the Law of Crimes by Ratanlal and Dhirajlal, Twenty First Edition at page 1188.
7. Assessing the gravity of aggravated forms of criminal trespass by reference to the quantum of maximum punishment of imprisonment with which each one of them is punishable, and ignoring in the intere3t:of brevity the sentence of fine, the variations of criminal trespass maybe noticed Trespass into a house, which term includes building, tent or vessel, etc., is an aggravated form of criminal trespass. (See Section 442, Penal Code). While criminal trespass is punishable under Section 417, Penal Code, with three months' imprisonment house trespass is punishable with imprisonment for one year under Section 448.
8. The offence of house trespass is further aggravated by reference to the gravity of the offence to commit which house trespass is made. If the offence aimed is punishable with death house trespass is punishable with transportation for life or 10 years' imprisonment. (See Section 419, Penal Code), If the intended offence for which house trespass is committed is punishable for transportation of life then house trespass is punishable with imprisonment of 10 years (See Section 450, Penal Code). If house trespass is committed after having made preparation for causing hurt or assault to any person or for wrongfully restraining any person or for putting any person in fear of hurt or Assault or wrongful restraint it is punishable with 7 years. (See Section 483, Penal Code). If the offence for the commission of which house trespass is committed is punishable with imprisonment only then house trespass is punishable with 2 years. However if the purpose of house trespass is theft then the punishment is 7 years. (See Section 461. Penal Code).
9. 'Lurking house trespass' and 'house breaking' are aggravated forms of house trespass. Lurking house trespass has predominant ingredient of surreptition (See Section 455, Penal Code). 'House-breaking' consists of entering into a house by an opening other than the ordinary or by force. Both these offences are punishable under Section 453, Penal Code, to 2 years' imprisonment. Then again the gravity of 'lurking house trespass' or 'house breaking' is aggravated by reference to the purpose for which it is committed. If it is committed for the commission of an offence punishable with imprisonment it is punishable by three years and if theft is intended it is 10 years. (See Section 454, Penal Code). If it is committed with the intention of causing hurt or assault or wrongful restraint or fear thereof if is punishable by 10 years. (See Section 455, Penal Code).
Lurking house trespass or house-breaking have another aggravated variation If it is committed between sun set and sun rise it is punishable with 3 years (See Section 456, Penal Code). This is by reference to the point of time when the offence is committed. Therefore if either of these two offences of lurking house trespass or house breaking we committed by night with the object of committing an offence punishable with imprisonment then such an offence is punishable with imprisonment of 5 years and if the intention is theft the imprisonment may be extended to 14 years. (See Section 457, Penal Code). If lurking house trespass and house breaking by night are committed after having made preparation for causing hurt or assault or wrongful restraint or patting any person into fear of any of these then the punishment provided is 14 years (See Section 458, Penal Code). Then comes the offence under Section 459 Penal Code. It reads,-
Section 459. - 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 imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
10. In the case before me I have to ascertain the meaning of the expression 'whilst committing lurking house-trespass or house-breaking' which I have underlined (here in ' ') above. Before I proceed to do so let me briefly notice the cases to which I have been referred.
11. In (1886) ILR 8 All 649, Straight, Offg. C.J., dealt with a case where the appellants were engaged in making a hole in the wall of the house of the complainant, when they were disturbed by the Chowkidar. They attempted to make good their escape and one of the appellants Ismailkhan fired a pistol. Ismailkhan was convicted by the Sessions Judge for an attempt to commit the offence provided in Section 459 of the Penal Code. The learned Judge of the High Court ob. served that Section 459 was not made out as lurking house-trespass and house-breaking were never completed, and since the grievous hurt or at. tempt to cause death or grievous hurt was not in the course of the commission of lurking house, trespass or house-breaking Ismailkhan was not liable under Section 459 read with Section 511 of the Penal Code.
12. In A.I.R. 1917 Lah 319 the circumstances were that the accused broke into the house of one Thakur Singh at night with an intent to commit theft armed with deadly weapon. On an alarm being raised they left the house and in the Courtyard stabbed one Ramsingh who tried to seize them injuring him so that he died later on. The learned Judge held that as the house-breaking was not complete Section 460, Penal Code did not apply and the offence committed was under Sections 457, 458 and 326 of the Penal Code.
13. In AIR 1921 Lah 94 four thieves broke into the house of Phallu by effecting a breach in the wall of his house. He was awakened by noise and saw three men standing outside the breach and fourth men just coming out of the hole. Three men ran away when they saw him, but he secured the man whom he had noticed coming out of the breach in the wall. The other three returned to rescue the captured man and succeeded in rescuing him by beating Phallu with sticks. When all the four were running Hassu a neighbour caught hold of one of them and received certain injuries in the transaction on account of which he died on the spot. The learned Judge held that Section 460, Penal Code was not made out but the conviction should have been under Section 457 of the Penal Code.
14. In AIR 1927 All 536 the facts were : Ramkaran Singh Kotwal of Ghasipur and Suraj Nath Singh, the Excise Inspector obtained a warrant to search the house of one Mohit Khan for illicit opium. They proceeded to the block of building in which that house was situate and in which were said to be the houses of Farrukhsher Khan and Mat. Amina Bibi. Some constables were directed to scale a wall. A dispute arose in the house inside the block of building and Farrukhsher Khan was injured. Farrukhsher Khan filed a complaint against the police for house-breaking and other offences. Mst. Amina Bibi and two others filed a similar complaint. The Magistrate refused to frame a charge under Section 169 of the Penal Code. The argument which prevailed with the Magistrate for refusing to frame a charge under Section 459, Penal Code was that the offence of house breaking was complete when an entry into the house was effected and any grievous hurt subsequently caused by the person breaking into the house cannot be said to be grievous hurt caused while they were committing house breaking. The case came before Ashworth J. who observed,-
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 Penal Code, I think that the Magistrate was correct in his view.... Criminal statutes have to be construed strictly in favour of the accused and, whatever view may be adopted to meet the difficulty montioned, 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 need 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 469.
15. In (1911) 8 ALL LJ 574 one Chatur entered the house of one Mathra Teli and attempted to rob his little daughter of a 'Hansli' which she was wearing round her neck. This happened at night. Mathra went to the rescue of his daughter and caught hold of the thief, who struggled with him, drew forth a knife and stabbed him in the belly. Mathra died within six days as a result of the stab. The question which cropped up for consideration was whether he should be convicted under Section 400 or 302 of the Penal Code. His conviction was altered from Section 400. Penal Code to one under Section 302, Penal Code and he was sentenced to death.
16. In (1876) 11 pun Re No. 17 (Cr) after committing a criminal trespass the prisoner had come out and the house trespass had ceased and then he caused grievous hurt. It was held that for applying the words 'whilst committing house, breaking by night' in b. 459 it was necessary to show that the attempt was made in the period during which the offence of house-breaking (which involves house-trespass) was being committed. It was not sufficient to show that the attack was made after the house-trespass had ceased.
17. The cases reported as (1886) ILR 8 all 649, AIR 1917 Lah 319 and AIR 1921 Lah 94 are cases where the trespassers had caused hurt in the process of escaping after the commission of the trespass. They do not in my opinion, assist the interpretation of the clause 'whilst committing lurking house-trespass'. The case (1911) 8 ALL LJ 574, Section 459, Penal Code was not considered and is therefore unhelpful. In the cages reported as (1876) 11 Pun Re No. 17 (Cr) and 38 Cal WN 446 : AIR 1934 cal 557 the learned Judge have held that if the house-trespass ceased or terminated and grievous hurt were caused thereafter Section 459 was not attracted. The case of AIR 1927 ALL 536 had adopted the interpretation accepted by the, Additional Sessions Judge in making the reference and adopted by Mr Bhimraj before me that, the expression 'whilst' means at the moment the lurking house-trespass is being committed. The Allahabad judgment the extracts of which I have quoted above proceeds on the doubts entertained by the learned Judge. I am afraid I do not share those doubts for the reasons I shall presently offer.
18. The word 'whilst' according to the Oxford English Dictionary, 1933 Edition, vol. 12, is an obsolete form which means 'during that time; meanwhile.' It is indicative of a portion of time considered with respect to the duration of a transaction. I am, therefore, inclined to be pi the view that during the period the house-breaking lasts if the trespasser causes grievous hurt to any person or attempts to cause death or grievous hurt the provisions of Section 450 of the Penal Code will be attracted. I am unable to take the narrow view that it is only in the process of making an entry into a house if the trespasser causes grievous hurt Section 459, Penal Code is attracted, as seems to be the view taken in Said Ahmed's case AIR 1927 ALL 536. Two reasons are apparent for my inability, with great respect, to agree with Ashworth, J. in Said Ahmed's case AIR 1927 ALL 536. The first is that the essential ingredient of lurking house-trespass or house-breaking is 'criminal trespass' and that offence continues so long the person remains upon the property in the possession of another. Entrance may be surreptitious and in some cases a split second transaction. It could not have been the intention of the legislature that if a person enters into the house of another by night having made preparations for causing hurt or assault to any person or wrongfully restraining then it would be a graver1 offence than the one in which a person after having entered upon the property of another causes grievous hart. Having regard, therefore, to the scheme and the place which Section 459 occupies in the Penal Code the intention of the legislature was that from the point of time lurking house-trespass or house-breaking by night commences to the time it concludes if any grievous hurt is cased or any attempt to cause death or grievous hurt is made then the trespasser shall be punished as provided for in Section 459 of the Penal Code.
19. In this view of the matter, accepting the allegations of the prosecution in the case before me if Bhanwarlal entered the house of Mst. Parbati in between sun-set and sun-rise by scaling the wall prima facie he committed house breaking by night and if he caused grievous hurt on her refusal to surrender for sexual satisfaction then he caused grievous hurt whilst committing house breaking and the charge as framed by the learned Additional Munsiff-Magistrate appears to me to be correct. I should not be taken to be expressing any opinion on the merits of the case. I have assumed the facts for the purposes of examining the legal position.
20. The result is that this reference is rejected.