* HIGH COURT OF DELHI AT NEW DELHI
+ CRL. M.C. No.3819/2011
Date of Decision : 05.09.2012
SEEMA GUPTA ...... Petitioner
Through: Counsel (name not given)
Versus
STATE & ORS. ...... Respondent
Through: Mr. Sunil Sharma, APP
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (Oral)
1. This is a petition filed under Article 227 of the Constitution of India read with Section 482 Cr.P.C. against the order 29.11.2010 passed by the District Judge(East)-cum-Addl. Sessions Judge, Delhi, dismissing the criminal revision petition No.70/2010 titled State (Govt. of NCT of Delhi) -vs- Mukesh Gupta & Ors..
2. Briefly stated, the facts of the case are that the petitioner is the complainant in respect of FIR No.55/2008 under Sections 323/452/34 IPC registered by PS:New Ashok Nagar, Delhi. It was alleged by her that on 9.12.2008, she, along with her Crl.M.C.No.3819/2011 Page 1 of 5 brother, Rajeev Jain, was present in the office of Vanasthali Public School. At about 2:20 P.M., she heard noises and saw the guard of her brother, namely, Ashutosh Kumar, was being beaten up by her husband and nandois, Pramod Gupta and Tarun Garg with danda. It has also been alleged that thereafter, all the three accused persons entered the office of her brother. The husband of the complainant caught hold of her hair and abused her. The matter was investigated by the Police and a Chargesheet was filed for offences under Sections 323/452/34 IPC. The learned Magistrate framed the charges only under Section 323 IPC and not under Section 452 IPC. The ground for not framing the charges under Section 452 IPC was that the incident had taken place in the School, the same being a public place. House trespass has been defined in Section 442 IPC. It means trespass into any building, tent or vessel used for home dwelling or any other building used as a place of worship.
3. On the basis of these facts, it has been contended that since the respondents had entered into the School, which is a public place, Crl.M.C.No.3819/2011 Page 2 of 5 it has to be treated as a dwelling unit and an offence under Section 442 IPC read with Section 452 IPC is made out. The learned Magistrate did not accept this plea of the petitioner and the State and directed framing of charges against the respondents only for an offence under Section 323 IPC. It discharged them for an offence under Section 452 IPC.
4. The State, feeling aggrieved by the said order, preferred a revision petition before the Court of Sessions, which was also dismissed. The learned Revisionist Court relied upon the judgment of the Division Bench of Punjab & Haryana High Court in State of Haryana -vs- Prem Singh, 2007(2) RCR (Criminal) 537 to hold that the School may be a public place, but it is not a dwelling house and, therefore, no offence under Section 452 can be made out.
5. The judgment of the Orissa High Court in Mangaraj Barik & Ors.
-vs- State of Orissa, 1982 Cri. L.J. 1631 was also brought to the notice of the Court to urge that according to the said judgment, a building used for home dwelling will also be contemplated a Crl.M.C.No.3819/2011 Page 3 of 5 building, which is not being used as a permanent residence of a party and it was further sought to be urged that even the office of the petitioner at the residence is a public dwelling house and, therefore, the Section would be attracted.
6. I have heard the learned counsel for the complainant and the State as well as the accused persons.
7. There is a concurrent finding of fact that no offence under the house trespass has been made out against the respondents. This is on account of the fact that Section 452 IPC clearly defines house trespass after preparation for hurt, assault or wrongful restraint.
8. It may be pertinent her to refer to Sections 442 and 452 IPC, which read as under:-
Section 442 House-trespass.--Whoever commits criminal trespass 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, is said to commit "house-trespass". Section 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 to seven years, and shall also be liable to fine. Crl.M.C.No.3819/2011 Page 4 of 5 A perusal of the above two Sections will clearly show that no offence of house trespass can be deemed to be committed prima facie unless and until the building, tent or the vessel, where the complainant is stated to be assaulted or visited by the accused persons, is a dwelling house. The judgment of the Division Bench of the Punjab & Haryana High Court in State of Haryana -vs- Prem Singh (supra) has very categorically observed that the very language of Sections 442 and 452 clearly make it amply clear that the building, tent or vessel must be used for human habitation. If it is not being used for human habitation, then it can never be said to be a dwelling house.
9. In the instant case, admittedly, the respondents had entered into the building from the front gate, while as the building is being used as a School. Under such circumstances, as the School is not being used as a dwelling house, it is not open to the parties to contend that the case falls under the definition of 'house trespass' and accordingly, the accused persons deserve to be charged under Section 452 IPC as well. On the contrary, I feel that the learned counsel for the petitioner is erroneously placing reliance on the Crl.M.C.No.3819/2011 Page 5 of 5 judgment of a Single Judge of Orissa. The view of the learned Single Judge wherein a school premises have been treated as a dwelling house is not a correct view. The Division Bench of the Punjab & Haryana High Court in State of Haryana -vs- Prem Singh (supra) is laying down the correct legal position with regard to the house trespass.
10. I am also of the opinion that there is a concurrent finding of the Courts below with regard to the fact that the building, where the respondents had entered into, was not a house or a dwelling unit and therefore, the offence should not be said to be falling within the definition of 'house trespass', as envisaged in Sections 442 and 452 IPC.
11. For the aforementioned reasons, I feel that the present petition is without merit and accordingly the same is dismissed.
V.K. SHALI, J.
September 05, 2012 tp Crl.M.C.No.3819/2011 Page 6 of 5