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Delhi High Court in the case of Suraj Giri & Ors Vs. State (S.b. Criminal Appeal No. 141, 565 and 638/2017) decided on 11.10.2017 while dealing with Section 459 IPC held as under :-

"13. In Said Ahmed's case (Supra) relied upon by learned counsel for the appellants the offence of house breaking was held to be complete when entry into the house is effected. It was also held that any grievous hurt caused after breaking into the house would not amount to causing grievous hurt (7 of 10) [CRLR-205/2020] while committing the lurking house trespass within the meaning of Section 459 IPC. This Court has taken a similar view in the decision reported as Rohtas v. State, 1987 (1) Crimes 576 Delhi. In the above noted case, the occurrence had taken place at about 1.30 a.m. on the night intervening 8th/9th February, 1979 at the house of the complainant where he along with his wife was sleeping at his house. The injuries were caused to the complainant and his wife with a 'mussal' picked from the room. The appellant Rohtas was convicted for committing the offence punishable under Section 459 IPC. In appeal the conviction under Section 459 IPC was challenged on the ground that to attract the provision of Section 459 IPC the attempt to cause grievous hurt or an attempt to cause death or grievous hurt to any person must be done in the course of commission of offence of lurking house trespass or house breaking. While accepting the submission made on behalf of the appellant in para No. 7 of the report it was held as under:-

14. Reverting to the facts of the instant case, from the statement of the complainant/injured (PW-1) it is proved that the hurt was caused by the appellant not in the process of committing lurking house trespass. The offence of lurking house trespass was complete once they entered into the dwelling unit of the complainant. The injuries subsequently caused by the appellant after breaking into his house do not satisfy the requirement of section 459 IPC as held in Said Ahmed's case (Supra) and by this court in Rohtas's case. Since the grievous hurt has been caused after committing the lurking house trespass, the offence proved against the appellants would be under Section 457/34 IPC and not under Section 459/34 IPC."

In view of above, I am of the opinion that although prima facie charge under Section 458 IPC is made out against the petitioners but charge under Section 459 IPC is not made out against the petitioners and the petitioners are liable to be discharged from the offence under Section 459 IPC. So far as the judgments relied upon by the petitioners with regard to Section 458 IPC are concerned, the judgment in the case of Balwant Singh (Supra) does not help the petitioners as in the said case the incident took place at an open place, therefore, the accused were discharged of offence under Section 458 IPC. In the case of Bijoy Kumar Mohapatra (supra), the accused were discharged of offence under Section 458 IPC as the accused persons had openly (9 of 10) [CRLR-205/2020] committed house trespass with common intention and there was no evidence that they concealed their presence. Thus, the cases relied upon by the counsel for the petitioners are clearly distinguishable and does not help the petitioners.

In view of above, this Court is of the opinion that trial court has not committed any error in framing charge for offence under Section 323, 458, 354, 325/34 IPC against the petitioners. However, the charge for offence under Section 459 IPC is not made out against the petitioners and petitioners are discharged of offence under Section 459 IPC.

Accordingly, the revision petition is partly allowed. The impugned order dated 20.01.2020 is quashed and set aside to the extent of framing charge under Section 459 IPC against the petitioners. The trial court is directed to proceed with the trial against the petitioners for rest of the offences.