Section 459 IPC Applies If Trespasser Causes Grievous Hurt Or Attempts To Cause Death Or Hurt While Trespassing: Rajasthan High Court

Dr. Justice Pushpendra Singh Bhati, while allowing the petition, modified the trial court's order (for the offence U/s 458, 323, 324, 325, 307/34) to the extent of framing of charges under Section 459 IPC in place of Section 458 IPC and thereby, observed,

"In this case, the accused-respondents illegal and forcibly entered the house of the complainant/petitioner, armed with lathis, sariyas and swords during night hours at about 10:15 p.m. on 31.09.2016, and inflicted grievous injuries upon the son and husband of the complainant/petitioner, while remaining in her house premises. The same constitutes house breaking, and the grievous hurt is not disputed, and thus, the applicability of Section 459 IPC is made out."

Essentially, as per the petitioner, the incident in question, for which the charges of 458, 323, 324, 325, 307/34 IPC were so framed by the trial court are that the accused respondents illegally and forcibly entered into the house of the petitioner complainant, along with lathis, sariyas and swords and inflicted grievous injuries upon the complainant petitioner's son and her husband, on 31.9.2016 at about 10:15 p.m in the night whilst being in the house-premises of the complainant petitioner.

The present criminal revision petition under Section 397 read with Section 401 Cr.P.C. has been preferred seeking relief to modify charges to the extent of framing the charges U/s 459 IPC in place of Section 458 IPC against the respondents accused in the interest of justice

The court opined that any house breaking, which is given effect to by entering into any house or any part thereof for committing an offence or commits assault, the same shall fall within the category of house breaking under Section 445 IPC (as per fifth condition thereof). The said condition of entrance or departure by using criminal force or committing an assault, cannot be construed narrowly and has to be given effect to, that any assault or criminal force used between entrance or departure shall also constitute an offence under Section 445 IPC (as per fifth condition thereof), added the court.

The court observed that the acts committed by accused private respondents in this case squarely fall under the definition of house-breaking contained under Section 445 IPC, on count of them being on the house-premises of the complainant petitioner with the preparation and purpose of committing an offence, in furtherance of which they had carried sharp weapons and lathis, and caused grievous hurt.

Moreover, the court also pursued that legislative intent of Section 458 IPC is that whosoever commits lurking house-trespass or house-breaking by night, with the preparation and intention to commit the aforementioned offences, would be penalised for the preparation and would attract the application of Section 458 IPC, for the fact that any person would have a simple and reasonable expectation of safety and privacy in his own home, and a heightened expectation of the same especially during night time.

It was added by the court that whoever whilst committing lurking house-trespass or house-breaking and attempts to cause grievous hurt or death or causes grievous hurt to any person, would be penalized under Section 459 IPC.

Further, the court observed that the view taken by Allahabad High Court in Emperor Vs. Said Ahmad and Anr. [AIR 1927 All 536] would in effect render Section 459 inapplicable to the offences, mentioned therein, committed or attempted to commit by those who commit lurking house-trespass or house-breaking. Therefore, the court refused to accept such a narrow view as it would not subserve the ends of justice and defeat the legislative intention behind Section 459 IPC.

In addition to this, reliance was placed on Sahnaz Uddin Laskar Vs. State of Assam, where Gauhati High Court held that the act of house-breaking was complete, since the accused had exited the house – premises in question and committed an offence by dragging the victim outside the premises of her house, and that since the course of trespass was complete at the time of committing the offence, it did not attract the application of section 459 IPC.

The counsel for the petitioner submitted that the trial court, has not rightly appreciated the facts and circumstances of the case at hand, and that the said order suffers from an incorrect framing of charges, to the extent that a charge was framed under Section 458 IPC instead of Section 459 IPC, and that it therefore ought to be modified accordingly.

In contrast, the counsel for the private respondent opposed petitioner's submission and submitted that the impugned order has rightly appreciated the facts and circumstances of the case which clearly reveal that the offence was not committed whilst the act of lurking house-trespass or housebreaking, and that the trial court has therefore, on a correct interpretation of the law, framed a charge under Section 458 IPC.

Case Title: Smt Meena v. State, Through PP

Citation: 2022 LiveLaw (Raj) 105