Offence Within Restaurant Not 'House Trespass' As Per Sections 442, 452 IPC : Supreme Court

Observing that a restaurant cannot be said to be either a place used for human dwelling or worship or the custody of the property, the Supreme Court set aside the conviction of a person accused of the offence of "house trespassing after preparation for hurt" under Section 452 of IPC.

The bench comprising Justice Bela M Trivedi and Justice Satish Chandra Sharma noted that Restaurant does not meet the criteria of a "house" under Section 442 IPC because it is neither a dwelling, a place of worship, nor a place for the custody of property. Thus, the necessary element for an offence under Section 452 was not fulfilled.

As per Section 442 of IPC, the offence of House Trespass is said to be committed by entering into or remaining in any building, tent, or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property.

Section 452 of the IPC punishes an act of entering or remaining on a property after preparing to cause harm or commit other criminal acts.

“452. House-trespass after preparation for hurt, assault or wrongful restraint.—Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend.”

It was the case where the appellant-accused had visited the Restaurant, and upon refusal of the restaurant's owner to provide a jug of water for consumption of alcohol, the accused voluntarily caused hurt to the owner with a knife. Thereafter, an FIR under Sections 324 and 452 of IPC was registered against the accused. The trial court convicted the appellant accused, and the High Court affirmed the conviction. Following this, an appeal was preferred before the Supreme Court.

Maintaining the conviction for voluntarily causing hurt under Section 324 of IPC, the court set aside the conviction under Section 452 and noted that since the essential requirement of Section 452 IPC when read with Sections 441 and 442 of IPC was not fulfilled, therefore no offence could be brought under Section 452 of IPC.

The Court observed that “the 'house trespass' being an essential ingredient for convicting a person under Section 452, it has to be proved by the prosecution that the accused committed the house trespass and criminal trespass by entering into or unlawfully remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, as contemplated in Section 442 IPC.”

Upon perusing the facts of the case, the court observed that, admittedly, “the incident had taken place in a restaurant run by the injured which cannot be said to be either a place used for human dwelling or for worship or for the custody of the property. Hence, the very ingredients of the offence under Section 452, namely, the criminal trespass as contemplated in Section 441 and house trespass as contemplated in Section 442 having not been made out by the prosecution, the appellant could not have been convicted for the offence under Section 452 IPC.”

The court partly allowed the appeal, upholding the conviction and sentence for Section 324 IPC but acquitting the appellant under Section 452 IPC.

Since the appellant had already served two years, he was ordered to be released if he was not required in any other case. However, he remained liable to pay the fine for the conviction under Section 324 IPC.

Appearance

For Appellant(s) Mr. Suvendu Suvasis Dash, Adv. Ms. Swati Vaibhav, Adv. M/S. Vaibhav & Dash Law Associates, AOR

For Respondent(s) Mrs. Archana Pathak Dave, A.S.G. Mr. Mukesh Kumar Maroria, AOR

Case Title: Sonu Choudary v. State of NCT Delhi, CRIMINAL APPEAL No.3111 OF 2024

Citation : 2024 LiveLaw (SC) 882

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