Madhya Pradesh High Court
Juber Ansari vs The State Of Madhya Pradesh on 29 April, 2025
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
Criminal Revision No. 828/2025
JUBER ANSARI
Versus
STATE OF MADHYA PRADESH
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Appearance:
Shri Ankit Saxena- Advocate for the petitioner.
Shri Shailendra Mishra - Panel Lawyer for the respondent/State.
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RESERVED ON : 09.04.2025
PRONOUNCED ON : 29.04.2025
This revision having been heard and reserved for judgment, coming on for
pronouncement on this day, the court passed the following
ORDER
This criminal revision has been filed under Section 438/442 of BNSS against judgment dated 18.02.2025 passed in Criminal Appeal No. 414/2024 (Juber Ansari Vs. State of MP), whereby petitioner's appeal has been dismissed and learned trial court's judgment dated 10.07.2024 passed in RCT No. 5682/2015 (State of MP Vs. Juber Ansari), convicting and sentencing petitioner under Section 452 and 323 of IPC has been affirmed.
2. Brief facts relevant for the disposal of present revision are that on 29.04.2024 at about 7:30 PM, petitioner entered into the house of prosecutrix abusing her and started assaulting her with kicks and fists. Petitioner also asked 2 prosecutrix to withdraw the case filed four months ago by prosecutrix's brother. When parents of prosecutrix intervened in the matter, petitioner also assaulted them with kicks and fists. Thereafter, petitioner fled away from there, after threatening them to kill.
3. Learned trial Court vide judgment dated 10.07.2024 passed in RCT No. 5682/2015 acquitted petitioner of offence punishable under Sections 294, 323, 354-A, 354 and 506 of IPC but trial Court convicted the petitioner under Section 452 of IPC and sentenced him to undergo RI for one year and fine of Rs. 1000/- with default stipulation and Section 323 of IPC and sentenced him to undergo RI for 6 months and fine of Rs. 1000/- with default stipulation. Learned Appellate Court vide judgment dated 18.02.2025 passed in Cr.A. No. 414/2024 dismissed petitioner's appeal and affirmed trial Court judgment.
4. Learned counsel for the petitioner, after referring to Sections 451 and 452 of IPC in the light of testimony of complainant (PW-1) etc, submits that in the instant case, learned Trial Court as well as Appellant Court has committed material illegality in convicting and sentencing the petitioner under Section 452 of IPC because in the instant case, ingredients constituting offence under Section 452 of IPC are not made out. It is also urged that it is so because offence under Section 452 of IPC would be made out only when a person commits house-trespass after "having made preparation" for causing hurt .......... In the instant case, when petitioner is said to have entered into the house of complainant, he was not armed with any weapon/anything. Therefore, it cannot be said that petitioner entered into 3 the house after having made preparation for causing hurt etc. Hence, present case would be covered under Section 451 of IPC and it is punishable with maximum sentence of two years. It is also urged that petitioner is in jail since 18.02.2025. Therefore, petitioner be sentenced with the period already undergone by him.
5. Learned counsel for the State submits that in the facts and circumstances of the case, appellant cannot be sentenced with the period already undergone. He further submits that trial Court has rightly convicted and sentenced the appellant. No interference is required in the same and appeal filed by the appellant be dismissed.
6. I have heard learned counsel for the parties and perused the record of the trial Court minutely.
ANALYSIS AND FINDINGS:-
7. So far as main incident/prosecution case is concerned, from deposition of Sangita Verma (PW-1), Kailash Shankar Verma (PW-2), ASI Hari Singh (PW-5) and FIR (Ex. P/1), it clearly stands established that at alleged date, time and place, petitioner entered into the house of complainant and assaulted complainant Sangita Verma with kicks and fists etc. Hence, in view of evidence available on record, it cannot be said that learned Trial Court as well as Appellate Court has committed any illegality, in having held that at alleged date, time and place, petitioner entered into the house of complainant and assaulted complainant with kicks and fists. Findings recorded by the trial Court as well as Appellate Court are well supported the evidence on record. Learned counsel for the petitioner has failed to point out any error in aforesaid findings recorded by trial Court and appellate court. 4 Otherwise also learned counsel for the appellant during submission did not challenge aforesaid findings. Hence, no interference is required in the aforesaid findings recorded by Trial Court as well as Appellate Court and they are affirmed as such.
8. Perusal of submissions of learned counsel for the petitioner reveals that primary contention of petitioner is that in the instant case, offence under Section 452 of IPC is not made out. At the most, offence under Section 451 of IPC is made out. For appreciating aforesaid contentions of learned counsel for the petitioner, it would be appropriate to reproduce Sections 451 and 452 of IPC which are as follows:-
"451. House-trespass in order to commit offence punishable with imprisonment.- Whoever commits house-trespass 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 two 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 seven years.
452. House-trespass after preparation for hurt, assault or wrongfull 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 wrongfull restraint, shall be punished with imprisonment of either 5 description for a term which may extend to seven years, and shall also be liable to fine."
9. Thus, Section 451 of IPC makes "any house trespass" an offence when any person commits the same in order to "commit any offence" punishable "with imprisonment", whereas Section 452 of IPC deals with commission of house trespass when the same is committed, "having made preparation" for causing hurt to any person etc.
10. Therefore, question arises as to what is meant by words "having made preparation" as mentioned in Section 452 of IPC and as to when a person can be said to have made "preparation" before committing the house trespass.
11. Black's Law Dictionary (Ninth Edition) defines "preparation" as under:- The act or process of devising the means necessary to commit a crime.
12. Similarly Concise Oxford English dictionary (Twelfth Edition) defines "preparation" as "The action or process of preparing or being prepared something done to get ready for an event or undertaking."
13. In the context of Section 452 of IPC "having made preparation", Division Bench of Calcutta High Court in Fakir Chandra De and others Vs. Emperor, 1921 SCC Online Cal 208, in paras 3 and 6 has held as under:-
"3. Neither the trying Magistrate nor the learned Sessions Judge who heard the appeal have given their reasons for holding that Section 452, Penal Code, 1860, is applicable to the facts of the present case, on the findings there can be no doubt that house trespass was committed, since it is found that the three accused entered the verandah of the complainant's house and dragged 6 him out. But no further fact is found from which it can be held that the accused committed house trespass having made preparation for causing hurt to any person or for assaulting any person. From the charge framed it would appear that the Trying Magistrate misunderstood the provisions of Section 452 since it charges the accused with having trespassed into the shop of the complainant for the purpose of assaulting the complainant. This being established would not be sufficient to support a conviction under Section 452, though it might be for a conviction of the three petitioners under Section 448, Penal Code, 1860.
6. We, therefore, make this Rule absolute to this extent. The conviction of the petitioners under Section 452 are altered to convictions under Section 448, Penal Code, 1860, and the sentence of each of the petitioners under this section will be a fine of Rs. 50 each with one fortnight's rigorous imprisonment in default of payment. The sentence on the petitioner Fakir under Section 379, Penal Code, 1860, is reduced to a fine of Rs. 50 with one fortnight's rigorous imprisonment in default of payment. The order as to compensation to complainant will remain unchanged."
14. Single Bench of Rajashthan High Court in Dalchand Vs. State, 1964 SCC Online Raj 159, in para 6 has held as under:-
"6. Taking up the first branch of the argument, I must observe that there is a considerable force in it and it must be accepted. It is well settled that there must be clear evidence of preparation for causing hurt to sustain a conviction under sec. 452 Penal Code, 1860. The fact that a person entered another man's house and committed an assault does not necessarily presuppose such preparation, for it may be a case of post hoc ergo propter hoc, The materials on the record of this case show that the fight 7 between the parties developed on account of the complainant having protested against the collection of stones by the accused. The fight was sudden and during the course of the fight the accused took a 'salia' of the cart and inflicted blow upon the complainant. In the circumstances of the case, it is difficult to infer that the accused had made preparation for causing hurt to the complainant. Mr. Singhi appearing for the State made no attempt to counter argument on this aspect of the case."
15. Hon'ble Apex Court in Abhayanand Mishra Vs. State of Bihar, 1961 SCC Online SC 67, in para 17 while dealing with term " preparation" has held as under:-
"17. ........................... The distinction between preparation to commit a crime and an attempt to commit it was indicated by quoting from Mayne's Commentaries on the Indian Penal Code to the effect:
"Preparation consists in devising or arranging the means or measures necessary for the commission of the offence; the attempt is the direct movement towards the commission after the preparations have been made."
16. Hon'ble Apex Court in State of MP Vs. Mahendra @ Golu, (2022) 12 SCC 442, in para 14 has defined term "preparation" as under:-
"14........................ If no overt act is attributed to the accused to commit the offence and only elementary exercise was undertaken and if such preparatory acts cause a strong inference of the likelihood of commission of the actual offence, the accused will be guilty of preparation to commit the crime, which may or may not be punishable, depending upon the intent and import of the penal laws"8
17. The word "makes any preparation" point to acts done prior to a commencement of the execution of the guilty purpose. "The making of preparation" should be shown to the satisfaction of the Court by some act, such as, the collection of arms, men, provisions etc., which, coupled with other circumstances, plainly manifest the intention to commit the offence. No hard and fast rule can be laid down that any particular act or any particular kind of steps towards the commission of an offence are necessary to constitute " preparation". When one person intends in his mind to commit an offence and having so intended does some act towards achieving that end, he has made preparation for committing that offence.
18. Thus, "preparation" consists in devising or arranging the means or measure necessary for the commission of the offence. Whether any overt act for recording conviction under section 452 of IPC would amount to "having made preparation" would depend on the facts and circumstances of each case. The law requires that accused should have done some act to get ready for committing the offence. Further, perusal of Sections 451 and 452 of IPC reveals that Section 451 of IPC is applicable to any offence punishable with imprisonment and Section 452 of IPC is applicable to offences pertaining to causing hurt/assaulting any person/wrongfully restraining any person. Sections 323 of IPC to 326 of IPC pertain to offence of various degree of causing hurt. Section 341 of IPC pertains to offence of wrongful restraint and Section 352 of IPC pertains to offence of assault. 9 Thus, offence under Sections 323 to 326, 341, 352 of IPC are punishable with both sentence of imprisonment or with fine or with both. Therefore, aforesaid offences are also covered under Section 451 of IPC as Section 451 of IPC pertains to house trespass in order to commit any offence punishable with imprisonment.
19. Hence, in view of aforesaid, the only distinguishing factor between Section 451 and 452 of IPC is "having made preparation", used in Section 452 of IPC. Hence, when a house trespass is committed without having made any preparation of causing hurt to any person/to assault any person/to wrongfully restraint any person, then, Section 451 of IPC would be applicable and if aforesaid offences are committed, having made preparation, then, Section 452 of IPC would be applicable.
FACTUAL ANALYSIS :-
20. Facts of the case, especially testimony of PW/1, PW/2 and Dr. N.Rai (PW/4) and MLC (Ex.P/9) and FIR (Ex. P/1) clearly reveals that complainant PW/1 has not sustained any external or internal injury in the incident and at the time of incident appellant/accused was not armed with anything/with any weapon whatsoever.
21. Hence, if aforesaid facts of the case are examined in the light of principles of law/legal position, as discussed in the preceding paras, then, in this Court's considered opinion, in the instant case, petitioner/accused's act would come within the ambit of Section 451 of IPC and not Section 452 of IPC. Because in the factual matrix of the instant case, it cannot be said that petitioner committed house 10 trespass "having made preparation" for causing hurt to PW/1/for assaulting him etc. Therefore, in this court's opinion, learned trial Court as well as appellate Court has committed material illegality in convicting and sentencing petitioner under Section 452 of IPC.
22. `Resultantly, on aforesaid point criminal revision filed by the petitioner/accused is allowed and petitioner is acquitted of offence under Section
452 of IPC.
23. So far as sentence is concerned, learned counsel for the petitioner submits that offence under Section 451 of IPC is punishable with maximum imprisonment of two years and petitioner is in jail since 18.02.2025 and there is no minimum sentence prescribed under Section 451 of IPC. Therefore, petitioner be sentenced with period already undergone by him. It is correct that offence under Section 451 of IPC is punishable with maximum imprisonment of two years. It is also correct that there is no minimum sentence under Section 451 of IPC. There are no external injury on the person of complainant. Hence, it would not be appropriate to sentence petitioner under Section 323 of IPC with any period of imprisonment.
24. This Court has examined aforesaid submissions of learned counsel for the petitioner, having regard to nature of offence and manner of commission of offence as is disclosed in examination-in-chief of complainant, it would not be appropriate to sentence petitioner with period already undergone. But having regard to overall facts and circumstances of the case, ends of justice would be served of petitioner is sentenced with six months RI under Section 451 of IPC with fine of Rs. 1,000/- 11
and in default one month RI and under Section 323 of IPC with fine of Rs. 1,000/- and in default one month RI.
25. Resultantly, this criminal revision filed by the petitioner is partly allowed and petitioner is acquitted of offence under Section 452 of IPC and instead, petitioner is convicted under Section 451 of IPC. Petitioner's conviction under Section 323 of IPC is affirmed and sentence of imprisonment as imposed Section 323 of IPC is set aside. Petitioner is sentenced under Section 451 of IPC with RI 6 months with fine of Rs. 1,000/- and in default 1 month RI and under Section 323 of IPC with fine of Rs. 1,000/- and in default one month RI.
26. Petition filed by the petitioner is party allowed to the extent as indicated hereinabove.
27. Present Criminal revision is disposed of accordingly. [ (ACHAL KUMAR PALIWAL) JUDGE Digitally L.R.signed by LALIT SINGH RANA Date: 2025.04.30 11:26:26 +05'30'