Seema Gupta vs State & Ors.
2012 Latest Caselaw 5295 Del

*            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

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,

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

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.

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

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