Crl. Misc. No.M-1807 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-1807 of 2010 Date of Decision: 30.07.2010 Tejinder Singh and another ....Petitioners Versus State of Punjab ...Respondent CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Deepak Aggarwal, Advocate for the petitioners. Mr. K.S. Pannu, D.A.G., Punjab for the respondent-State. Mr. D.S. Malwai, Advocate for respondent No.2. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is a petition under Section 482 Cr.P.C for quashing of Order dated 27.05.2009 passed by Sub Divisional Judicial Magistrate, Phul, whereby, the Magistrate committed the trial of the case to the Court of Sessions and for quashing of the Order dated 24.07.2009 passed by Additional Sessions Judge (FTC), whereby, the Additional Sessions Judge, Bathinda has framed the charge under Sections 450, 326 and 341 IPC. Learned counsel for the petitioners contended that on the basis of the statement of Balwinder Singh, initially, the present FIR was recorded under Sections 452, 324/34 of the Indian Penal Code. However, after the receipt of the X-ray report, offence under Section 326 of the IPC Crl. Misc. No.M-1807 of 2010 2 was added to the FIR. The Sub Divisional Judicial Magistrate, Phul after taking into account the oral, as well as, the documentary evidence on the file, held that the offence under Sections 450/326/34 of the Indian Penal Code was found to be made out against the accused. Thus, Section 326 of the Indian Penal Code is to tried by the Magistrate, whereas, Section 450 of the Indian Penal Code is to be tried by the Court of Sessions. It was further contended that Section 326 IPC is not exclusively punishable with imprisonment for life but is punishable for a term up to 10 years which may extend to life imprisonment where hurt involved is grievous one. The same is triable by the Magistrate. On the other hand, the offence under Section 450 IPC is to be tried by the Court of Sessions. Thus, the Order dated 27.05.2009 passed by the Sub Divisional Judicial Magistrate, Phul, committing the case to the Court of Sessions has caused great prejudice to the petitioners. Accordingly, his prayer is two fold ; (i) that the case does not fall within the mischief of Section 450 IPC, if at all, it falls under Section 452 IPC. Case under Sections 326, 452/34 IPC would be triable by the Judicial Magistrate Ist Class. (ii)that the case should not have been sent to the Court of Sessions. Learned counsel for the respondent, on the other hand, states that in the facts of the present case, Section 450 IPC was made out and relied on the judgment of Surjit Singh and anr. vs. State of Punjab reported as 2007 Crl. L.J. 2768, to state that the appellant is liable to be convicted under Section 450 as he has made forcible entry into the house. Learned counsel for the parties have been heard. The argument of learned counsel for the petitioners that Section 452 IPC is attracted and not Section 450 IPC has merit. Section 326 of the Indian Penal Code reads as under :- Crl. Misc. No.M-1807 of 2010 3 “326. Voluntarily causing grievous hurt by dangerous weapons or means.- Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” Section 450 of the Indian Penal Code reads as under :- “ 450. House-trespass in order to commit offence punishable with imprisonment for life.- Whoever commits house-trespass in order to the committing of any offence punishable with [imprisonment for life], shall be punished with imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine.” Section 452 of the Indian Penal Code reads as under :- “452. House-trespass after preparation for hurt, assault or wrongful 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 wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” From the above, it is apparent that the offence falling within Crl. Misc. No.M-1807 of 2010 4 the mischief of Section 326 IPC is not punishable with imprisonment for life exclusively as this offence is punishable with imprisonment for a term up to 10 years but it may extend to imprisonment for life and is triable by the Magistrate. Section 450 of the IPC, on the other hand, shows that if the house-trespass is in order to committing of any offence punishable with imprisonment for life alone shall fall within the mischief of Section 450 IPC. Thus, if Section 326 IPC is added, Section 450 IPC will not be attracted as the same is exclusively for an offence i.e. punishable with imprisonment for life, as Section 326 IPC is not exclusive for an offence punishable with life. Thus, a person commits trespassing in order to inflict grievous hurt is punishable under Section 452 IPC which would be triable by magistrate. The said hurt can be simple or grievous. Since, Section 326 IPC has been added in the present case, the offence attracted is under Section 452 IPC and not under Section 450 IPC, which is triable only by the Court of Sessions. In almost identical facts, this Court, in the case of Amrik Singh and another vs. State of Punjab reported as 1998(2) RCC 140 held as under :- “ It was submitted that if house trespass is in order to the committing of any offence punishable with imprisonment for life aline, shall fall within the mischief of Section 450 Indian Penal Code and if the house trespass is in order to the committing of any offence punishable with imprisonment for life or with imprisonment of either description which may extend to 10 years, shall not fall within the mischief of Section 450 Indian Penal Code. It was submitted that Section 326 Indian Penal Code is punishable with imprisonment for life or with imprisonment of either description for a term which may extend to 10 years and as such if the house trespass is to commit as offence punishable with imprisonment for life or with imprisonment of either description for a term which may extend to 10 Crl. Misc. No.M-1807 of 2010 5 years which sentences is provided for an offence falling within the mischief of Section 326 Indian Penal Code, no offence under Section 450 Indian Penal Code will be made out. It will be an offence falling within the mischief of Section 452 Indian Penal Code as it will be house trespass after having made preparation for causing hurt. In support of this submission, he drew my attention to Santosh Singh vs. State of Punjab and others, 1993(1) Chandigarh Criminal Cases 245, where it was held that Section 450 Indian Penal Code is attracted where a person commits trespass in order to commit offence punishable with imprisonment for life. A person commits in order to inflict grievous hurt is punishable under Section 452 Indian Penal Code as hurt includes any kind of hurt, simple or grievous, for the purpose of Section 452 Indian Penal Code.” The offence under Section 326 IPC is not exclusively punishable with imprisonment for life. Thus, Section 452 IPC is made out and not Section 450 IPC as Section 450 IPC is exclusively for an offence punishable with life. Even otherwise, the challan was filed under Section 452 IPC. Accordingly, the present petition is allowed and the impugned Orders dated 27.05.2009 (P-3) passed by Sub Divisional Judicial Magistrate, Phul and dated 24.07.2009 (P-4) passed by Additional Sessions Judge (FTC) are set aside. In consequence, case remains triable by Judicial Magistrate, Ist Class and not by the Court of Sessions. (NIRMALJIT KAUR) 30.07.2010 JUDGE gurpreet