Find a Lawyer

Criminal Reference No. 161 of 1952 answered on 24^th February, 1953.

S. 448‑Temporary absence of complainant from house‑Trespasser, held, rightly convicted under S. 448 P. P. C.

In the temporary absence of the complainant from the house, a trespasser who forces an entrance into the house commits an offence under S. 448 P. P. C.

Mohanta Lal Das v. Monmohan Sarma and others 51, C L J 1496 ref.

S. M. Reza, in support of the Reference.

D. C. Roy, in opposition to the Reference.

‑This is a reference made by Mr. V. Hossain, Sessions Judge of Dacca, dated the 18th November, 1952, who recommends that the order passed by Mr. Obaidullah, Magistrate of First Class, Dacca, dated the 7th August, 1952 convicting one Haji Zaheer Khan under section 448 of the Penal Code and fining him Rs. 60 should be set aside.

Mr. Reza has appeared in support of the Reference while Mr. D. C. Roy has appeared in opposition thereto.

The case was started at the instance of Bishu Mukherjee the complainant, who lodged an information in the Sutrapur Police Station on the 28th April, 1952, at 9‑55 a.m. com plaining that the accused Haji Zaheer khan had broken open the lock of his bed‑room and forced entrance in that room at 28, Jorpool Lane, on the previous night during his temporary absence therefrom. The complainant Bishu Mukherjee came to know about the occurrence from the caretaker early next morning and with the Mohalla Sa.rdar he came to the house and asked the trespasser to vacate the house. He declined to do so and continued in occupation of the bed‑room together with some women. The complainant managed to get back possession of the house with the exception of this bed‑room. Accordingly a case was instituted against the trespasser under section 448 of the Penal Code.

In support of the Reference it is claimed that there was no actual occupation of the room at the time when the trespasser effected his entrance. It was claimed therefore that as there was no actual physical possession, it was not a forcible occupation of the premises such as is contemplated by law and therefore the conviction of the accused under section 448 of the Penal Code should be set aside and the consequential order under section 522 of the Criminal P. C. should also be set aside.

Mr. Roy appearing in opposition thereto relies on the judgment of Roxburgh J. in the case of Mohanta Lal Das Complainant Petitioner v. Monmohan Sarma and others Accused Opposite Party (51 C L J 1496), a case which is exactly in point. In the case under report the accused took possession of the rooms belonging to the complainant when the latter had left for another place for a short while but refused to vacate them when on his return the complainant asked him to do so. It was held that the case fell within the definition of section 441 and the accused was rightly convicted under section 448 of the Penal Code. In the present case they evidence establishes that on the night of the occurrence the complainant was absent, having taken his wife who had begun to suffer from labour pains. He accordingly left the premises in charge of a caretaker. It would indeed be a dangerous precedent fl it were held that in the temporary absence of an owner who takes his wife for medical attendance at the time of pregnancy, a trespasser who has forced an entrance into his house has not committed any criminal offence. That an force was used is clearly proved by the fact that the premises was kept under lock and key and the locks were broken open.

In these circumstances there is no reason for interference with the conviction under section 448 of the P. P. C. and with the order under section 522 of the Criminal P. C.

The Reference is accordingly rejected.

A. H. Reference rejected.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.