Mohammad Nasiruddin vs Emperor

Jwala Prasad, J.—The petitioner has been convicted u/s 456, Indian Penal Code, and sentenced to two months'' rigorous imprisonment. The conviction has been upheld by the Sessions Judge of Manbhum.

The petitioner is a Ticket Collector at Jharsuguda Railway Station and takes his food in the kitchen of the Refreshment Room. Rammurti, a Madrasi gentleman, has recently gone to Jharsuguda as a Refreshment Room Clerk. He occupies a quarter in the Railway godown consisting of a room the door of which opens on to the closed lattice work verandah which itself has a door. Rammurti''s household consists of his mother, a woman of about 50 years, and his nieces aged about 19 and 14, of whom the former is a widow and the latter a married woman. On the night of the occurrence the ladies slept in the house and Rammurti on the verandah of the Railway Mail Service Office just in front of his quarter and opposite to it. He locked the door of the verandah on the outside and kept the key with himself. About 1-30 A.M. on the night of the 13th July the mother of the complainant Rammurti, called the elder Sundaramma, being aroused by the cackling of the fowls in the kitchen of the refreshment room, and heard stones thrown against the door of the room in which the ladies slept. Shortly afterwards she saw a man thrust his head within the door of the room and throw small stones at her granddaughters. The junior Sundaramma woke up, nudged her grandmother and both of them recognized the petitioner and cried out to Rammurti. Rammurti ran up to the verandah and recognized the petitioner running away. The door of the verandah was found open and stones and cinders were found here and there in the room and some on the bed of the younger woman. Rammurti forthwith went to the Assistant Station Master on duty who went with the Yard Foreman and a constable to the complainant''s quarters, found the brass look with which Rammurti had closed the door of the verandah lying broken on the ground outside and the state of the apartments as described above. An information was lodged by Rammurti to the Police next morning and after investigation the accused was sent up.

The Court below has found the prosecution story as stated above to be true and established by evidence in the case.

Mr. Agarwala, on behalf of the petitioner, takes an exception to the validity of the trial upon the ground that the Magistrate failed to comply with the provisions of Section 342 of the Code of Criminal Procedure. It is not denied that the accused was, as a matter of fact, examined by the Magistrate on the 25th August 1924, after the close of the prosecution case and before he was called upon to enter into his defence. The objection is as to the manner of the examination of the accused by the Magistrate. The accused was first examined on the 7th August, 1924. On the 25th August he was examined under the latter portion of Section 342 of the Code. The question put to him by the Magistrate was as follows:

You have heard the further evidence given by the prosecution witnesses in your presence to-day. Have you got to say anything else?

The answer of the accused was "No." In his earlier examination he was asked whether he entered the house of Rammurti by breaking the lock of the door and threw stones at his nieces who were sleeping in the room. His answer was "No." Then he was asked why this case was brought against him. He said that the case was brought against him out of grudge, and then he detailed this plea by giving facts and circumstances in his statement. It is said that on the 25th August 1924, after the close of the prosecution case and before the accused was called upon to enter into defence, the Magistrate ought to have asked the accused questions upon the evidence in the case that showed the participation of the accused in the offence of which he was charged so as to give him an opportunity to explain those circumstances. The contention is that the Magistrate who heard the evidence of the prosecution must have told the accused on what points he considered the evidence sufficient against the accused for the purpose of enabling the accused to explain those circumstances. It is true that at that stage it is imperative upon a Magistrate: "to question the accused generally on the case" and the object of this examination is to "enable the accused to explain any circumstance appearing in the evidence against him."

This provision in the Code has been the subject of great divergence of opinion. Lately there has been a difference of opinion in this Court [vide Durga Ram v. King-Emperor AIR 1925 Pat. 342, and Banamali Kumar v. King-Emperor AIR 1925 Pat 389]. Kulwant Sahay, J., held that the examination of an accused person under the latter part of Section 342 should be a detailed one and the Magistrate ought to let the accused know as to what are the circumstances indicated in the evidence against him for obtaining if possible an explanation of the accused and that the putting of a simple question as to whether the accused had anything to say is not a sufficient compliance with the provisions of the law. Foster, J., took a contrary view. The matter has recently been dealt with by the Calcutta High Court in the case of Emperor Vs. Alimuddi Naskar and Another, . Newbould, J., held that "a formal question in general terms to give the accused an opportunity of making a statement of his defence with his own lips is a sufficient compliance with the mandatory provision of Section 342 of the Code of Criminal Procedure, since it enables the accused to explain any circumstance appearing in the evidence against him. To what extent the Court when complying with the mandatory provision of the section should also exercise its discretionary power under the other provisions of the section is a different question. The exercise of this discretion must vary with and depends on the circumstances of each particular case but in the majority of cases it is neither necessary nor desirable that there should be any detailed questioning of the accused." Mukerji, J., held that "in questioning the accused u/s 342, Criminal Procedure Code, the Court must point out to the accused the salient points appearing in the evidence against him in a succinct form and he must be asked to explain them if he wishes to do so. If on a general question as to whether he wishes to say anything being put, the accused answers in the negative, it will be no use asking him any further questions."

I would invite attention to the difference in the wording of the first and the second portions of Section 342, the former being discretionary and the latter mandatory. As the prosecution case goes on the first portion gives power to the Court to put any question to the accused that he thinks necessary in order to obtain an explanation of any circumstance appearing in the evidence against the accused. The provision says that the Court may "put such questions to him (accused) as the Court considers necessary."

After the close of the prosecution case the mandatory portion of the section requires the Magistrate to "question him (the accused) generally on the case" the object being the same as in the case of an examination under the first portion of the section, namely, to enable the accused to explain any circumstance appearing in the evidence against him. It depends upon the circumstance of each case what must be the nature of the questions put by the Court, but it would be a sufficient compliance with the provision of the Code if the Court gives to the accused an opportunity by questioning him generally on the case to explain the circumstances appearing in the case against him. In this connection the examination of the accused, if any, under the first portion of the section, may usefully be looked into. In the present case the accused was in his earlier examination told the case against him as disclosed in the evidence of the prosecution and that case was that on the night of the 13th July, 1924, he entered into the house of Ramamurti by breaking the lock attached to the door and threw stones at his nieces who were sleeping in the room. On the 7th of August he was asked whether he committed the act or not, and he denied it. He was then asked as to why the case was brought against him and he gave his reasons for it. After this, four prosecution witnesses were cross-examined and discharged, and then the accused was asked whether upon hearing the evidence given that day he had anything to say. The witnesses for the prosecution, as observed above, were cross-examined on behalf of the accused, and thus he was fully aware that he had to explain the circumstances brought out by the prosecution evidence against him. The Magistrate then gave him an opportunity, by putting questions generally upon the case under the latter portion of Section 342, to explain these circumstances against him and to disclose his own defence. His answer was in the negative. In the circumstances of the present case I do not think the provision in the latter portion of Section 342 was not complied with. It is not necessary, nor is it desirable, to examine the accused in great detail or to force him to disclose his defence so as to enable the prosecution to take advantage of it when the witnesses for the accused are examined. It is impossible to lay down any hard and fast rule as to the nature of the examination of an accused u/s 342 of the Code. I, therefore, reject the contention of the learned Counsel that the trial was vitiated by not properly complying with the requirements of Section 342 of the Code.

The next contention is that the conviction u/s 456, Penal Code, is bad, inasmuch as the intention of the accused has not been found to be to commit any offence or to intimidate, insult or annoy any person in possession of the house in question. Reference has been made to the case of Ambika Charan Sarkar v. Emperor [1906] 4 C.L.J. 169. In that case the finding was that the intention of the accused in entering the house of the complainant was to carry on an intrigue with the complainant''s widowed sister in-law. It was held that the entry was not an offence, nor was the intention to cause any annoyance to the occupants of the house: rather it was secretly to carry on an intrigue without the knowledge of the persons in the house. The conviction was set aside. The case of Balmakund Ram v. Ghansamram [1895] 22 Cal. 391, was distinguished in that case upon the ground that the intention of the accused in that case was to commit adultery with the wife of the complainant which in itself was an offence punishable under the Code. In the case of Queen-Empress v. Rayapadayachi [1896] 19 Mad. 240, the finding was that the accused entered the house to have sexual intercourse with the complainant''s unmarried sister and it was held that the accused could not be convicted u/s 456. This case was followed in the Full Bench case of S. Vullappa v. S. Bheema Row [1918] 41 Mad. 156, where it was held that an offence u/s 441, Penal Code, is committed only when the trespass is with one of the intents specified in that section and the proof that the trespass committed with some other object was known to the accused to be likely or was certain to cause insult, or annoyance, is insufficient to sustain a conviction u/s 448. Undoubtedly, in order to constitute criminal trespass u/s 441, the entry into the house or property in the possession of another must be with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, and in order to sustain a conviction u/s 456 it must be proved that there was in the first instance criminal trespass as defined in Section 441. Thus, a mere entry into a house occupied by another with intent to carry on an intrigue or to have sexual intercourse with a woman living in that house will not in itself be a criminal trespass. In such a case it is supposed that the entry has been with the consent or connivance of the woman living in the house. However, if she along with other inmates is in possession of the house, as in the case of a joint Hindu family, the trespass in the house must cause an insult and annoyance to the other members in the house. If the object is to force an intrigue upon a woman in the house and to have a forcible intercourse with her the intention of the entry will necessarily be to insult and annoy that woman. In the present case the finding of the Court below is that there was no pre-arrangement between the accused and the junior Sundaramma, or for the matter of that with any other lady in the house. The case stated in the judgments of the Courts below, on the other hand, goes to show that all the ladies in the house, the grandmother, the widowed Sundaramma and the unmarried girl Rajjo were startled at the bold attempt on the part of the accused to force himself into the house and to throw pebbles at them. The junior Sundaramma is stated to have, when she suddenly woke up at hearing the noise, nudged her grandmother. Therefore, in the present case the intention was not to carry on a peaceful intrigue and intercourse with any of the ladies in the house and with the consent or connivance of any one of them, but the intention of the accused was to commit a criminal trespass into the house and an indecent and unjustifiable trespass upon the persons of the occupants of the house. The concurrent finding of the Courts below in the present case makes the authorities cited by the learned Counsel on behalf of the petitioner inapplicable to the present case. This contention must, therefore, also be held to be untenable.

The last submission of Mr. Agarwala is that the punishment in this case is excessive and that it should be reduced. The view taken by the Court below is that the punishment in this case is lenient and that the Magistrate has erred on the side of leniency. I do not think the accused has any grievance on account of the severity of the sentence. The act committed by him is most reprehensible. Ramamurti happened to come to Jharsuguda only recently with several ladies of his family. The outrage attempted upon his house-hold is a heinous offence, and the punishment in the present case is far from being severe.

The application is refused.