Chattisgarh High Court
Rajesh Uttra Kumar vs State Of Chhattisgarh on 21 August, 2001
Equivalent citations: 2002CRILJ1175
Author: R.S. Garg
Bench: R.S. Garg
ORDER R.S. Garg, J.
1. Heard. Anticipating arrest in connection with crime No. 124/2001 of police station, Sheorinarayan for an offence punishable under Sections 354 and 453, I.P.C. the applicant has filed the present application under Section 438, Cr. P. C.
2. The prosecution case in brief is that the applicant committed lurking house trespass by making entry into the house of the prosecutrix and out-raged her modesty. Section 354, I.P.C. is bailable while Section 453, I.P.C. is not.
3. Learned counsel for the applicant submits that from a bare perusal of the first information report, it would clearly appear that an offence punishable under Section 453, I.P.C. is not made out.
4. Opposing the application, learned counsel for the State submits that if Section 339, I.P.C. is read in its true perspective it would clearly appear from the records that an offence punishable under Section 453, I.P.C. even if is not made out, at least an offence under Section 452, I.P.C., which is also non-bailable, is made out.
5. The prosecutrix in her first information report has said that while she was coming out-side the house to sweep the ground, the accused entered in her premises, caught hold of her mouth and tried to out-rage the modesty but on her applying force she could release herself and as her relations raised the alarm, the accused ran away from the spot.
6. For proper appreciation of Section 453, I.P. C, it would be necessary to see Section 443, I.P.C. Section 443, I.P.C. defines lurking house-trespass. It says that whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespass from building, tent or vessel which is the subject of the trespass, is said to commit "lurking house-trespass".
7. The offence of lurking house-trespass is committed when a person enters the premises after having taken precautions to conceal the house trespass in the manner mentioned in Section 443, I.P.C. The first information report does nowhere say that the accused had made any attempt or had taken any precaution to conceal such house trespass from some person who had a right to evict him from the said premises. It is not even the prosecution case that the accused had covered his face or was committing lurking house trespass. For application of Section 452, I.P.C. the prosecution is required to show that the person who 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, made the entry in the house. In the present case, the prosecution does not say nor even the prosecutrix asserts that the accused made the entry in the house for causing hurt to any. person or for making assault on any person. It does not appear from the prosecution case that the accused entered in the premises for wrongfully restraining any person or for putting any person in fear of hurt or of assault, or of wrongful restraint. Section 339, I.P.C. provides that whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person. The prosecutrix does not say that she wanted to proceed towards a direction where she had a right to proceed and the accused voluntarily obstructed her from proceeding towards that direction. If Section 339, I.P.C. is not applicable, then Section 452, I.P.C. certainly would not be applicable.
8. The present would appear to be a case where the accused prima facie can be held liable to answer a charge for offence punishable under Section 354 read with Section 451, I.P.C.
9. Taking into consideration the nature of the allegations and the facts that Section 451, I.P.C. so also Section 354, I.P.C. are both bailable, but the police has registered a non-bailable offence against the accused. I am of the opinion that the applicant deserves an order under Section 438, Cr. P. C.
10. In the event of arrest, on his furnishing a personal bond in the sum of Rs. 5,000/- with one surety in the like amount to the satisfaction of the police officer arresting him, the applicant shall immediately be released on bail by the said officer for his appearance before the police for the purposes of interrogation and before the Court or as and where so directed.
11. The Court below while rejecting the application for grant of bail under Section 438, Cr. P.C. has simply observed that the accused committed the alleged offence. It is expected of every Judicial Officer that they would not guided by the cover of the offences but would look into the nature of the allegations and would decide whether a prima facie offence with which the accused has been charged is made out or not.
12. Let a copy of the order be also sent to the learned Court below which had rejected the application.
C.C. today.