Balai Chandra Nandy vs Durga Charan Banerjee and Another

A.C. Sengupta, J.—This appeal is directed against an order of acquittal passed in Criminal Appeal No. 24 of 1979 by the learned Additional Sessions Judge, 13th Court, Alipore. That appeal was preferred by the accused Durga Charan against the order of conviction and sentence passed against him by the Judicial Magistrate under Sections 454 and 427 I.P.C. The learned Additional Sessions Judge upholding the findings of the learned Magistrate that the accused committed mischief by breaking open the door and throwing out the articles from the room in the possession of the complainant after entering therein, convicted the accused u/s 426 I.P.C. instead of Section 427 I.P.C. as done by the learned Magistrate, because he held that there was no evidence as to the extent of loss suffered by the complainant.

With regard to the charge u/s 454 I.P.C., the learned Additional Sessions Judge acquitted the accused on two grounds:

(1) that the prosecution failed to prove that the intention of the accused was to commit the offence of mischief; and

(2) that even if it was assumed that the intention of the accused was to commit mischief the accused could not be convicted of a charge u/s 454 I.P.C. because "the offence of mischief is not exclusively punishable with imprisonment either u/s 426 or u/s 427 I.P.C.

These findings of the learned Additional Sessions Judge are perverse. The learned Additional Sessions Judge himself found that it was "proved beyond doubt that the accused together with some others actually came in front of the complainant''s godown in the early morning on 13-7-1976 and broke open the door of the godown with force, entered the godown and threw out the articles from the godown on the road." Thus the findings of the learned Additional Sessions Judge borne out by the evidence clearly show that according to the learned Additional Sessions Judge also lurking house trespass was in fact committed by the accused-respondent. It is strange that the learned Additional Sessions Judge could devote a few pages on the question of intention which was totally irrelevant for the purpose of this case. Section 454 which is quoted below shows that intention is totally irrelevant in this case:

Section 454 - Whoever commits lurking house-trespass or house-breaking, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to ten years.

Thus the section comprises two parts with regard to question of punishment. The first part states that the person committing house trespass or house breaking in order to commit any offence punishable with imprisonment shall be punished with imprisonment or fine. In the first part there is nothing stated about intention. It only deals with certain facts, namely the fact of committing lurking house trespass and the fact of committing of any offence punishable with imprisonment or fine. The second part deals with the question of intention. The second part deals with an aggravated form of the offence. This offence is aggravated only when, as stated in the second part, there is an intention to commit a particular offence, namely, theft. So far as the first part of the section is concerned, as already stated, the question of intention is totally irrelevant.

As the findings of the learned judge, as noted earlier, show that the accused committed certain acts which comprised all the ingredients of the offence of lurking house trespass and he convicted and sentenced the accused on a charge u/s 426 I.P.C., it is to be held in the circumstances of the case that an offence u/s 454 I.P.C. was committed by the accused-(Present respondent) because the other hypothesis of the learned Additional Sessions Judge that the offence of mischief not being exclusively punishable with imprisonment either u/s 426 or u/s 427 I.P.C., the charge u/s 454 I.P.C. cannot be sustained, is wrong. He committed an illegality by qualifying the word "punishable" in Section 454 I.P.C. with the word "exclusively". It is strange that he could import the word "exclusively" to qualify the word "punishable" in Section 454, although the Act itself does not say so. The section which is already quoted only states that whoever commits lurking house trespass in order to commit any offence punishable with imprisonment or with fine commits the offence punishable u/s 454 I.P.C. In the present case the accused-respondent, did, while committing lurking house-trespass, in fact commit the offence punishable u/s 426 I.P.C. as found by the learned Additional Sessions Judge.

Thus in view of the findings of the learned Additional Sessions Judge with regard to the questions of fact which are justified by the evidence on record, we hold that the accused-respondent, in the circumstances stated above, did commit an offence punishable u/s 454 I.P.C. The accused is, therefore, liable to be convicted and sentenced on a charge u/s 454 I.P.C.

Now with regard to the question of sentence to be imposed on the charge u/s 454 I.P.C., it may be noted that both the courts below are unanimous with regard to quantum of fine that was to be paid by the accused, the learned Magistrate, on a charge u/s 427 I.P.C. and the learned Additional Sessions Judge, on a charge u/s 426 I.P.C., the amount of fine imposed is Rs. 100/- only. Both the courts including the trial court actually seeing and recording the evidence of the witnesses, after considering the facts and circumstances of the case, imposed a fine to the extent of Rs. 100/- only, thereby expressing their view on the nature and gravity of the offensive acts of the accused. Along with this fact we also take into consideration the fact that the criminal case, in question, was instituted against the accused more than 20 years ago.

In the circumstances of the case, some of which have been noted above, we set aside the order of acquittal passed by the learned Additional Sessions Judge with regard to the charge u/s 454 I.P.C. and convict the accused-respondent of the charge u/s 454 I.P.C. to sentence him to suffer imprisonment for this day only, till the rising of the Court. This appeal is allowed.

We pass the sentence because it is submitted by the learned Advocate for the accused-respondent that the accused is present in court.

Sheriff will take custody of the accused-respondent and execute the order.

Let a plain copy of the operative portion of the judgment and order, countersigned by the Assistant Registrar (Court) be handed over to the Sheriff who will act on the same.

Jitendra Nath Chaudhuri, J.

I agree.