Reeta Jaiswal And Another vs State Of Madhya Pradesh

Submissions were made on the question of admission of this criminal revision filed under Section 397 read with 401 of Cr.P.C., which has been preferred against the order of framing charges against the applicants passed on 15.03.2018 in Criminal Case No.148/2018 by the Judicial Magistrate First Class, Badnawar, District Dhar.

The question posed before this Court is whether revision against the order of JMFC is maintainable directly before the High Court or not?

Learned counsel for the applicants has submitted that in an order of the High Court of MP pronounced in the case of State of Madhya Pradesh vs. Khizar Mohammad, LAWS (MPH) 1996

2 70, it has been observed that option is with aggrieved party to file revision application before the Sessions Court or directly before the High Court and the High Court cannot insist that revision be filed first before the next superior Court. This is an order passed by the Division Bench answering a reference made by the Hon'ble Chief Justice, in view of the contrary opinions referred in the two Single Bench decisions.

In view of the above citation, it is opined that direct revision application is maintainable before this Court against an order passed by the JMFC.

The revision application is thus admitted for final hearing.

Final submissions were made on this revision application.

This revision seeks to challenge the order framing charges against the applicants under Sections 452, 323, 294, 506 and 34 of IPC by the JMFC.

Precisely speaking, facts of the case are that the complainant runs a private school called Little Flower School at Village Nagda. On 26.10.2017 at around 12.30 PM, when the complainant and her husband were sitting inside the school office, applicants barged into the office and asked them to give transfer certificate of their girl child. The complainant told them that the child has studied in the school only for three months in Class-1 and has not taken examination and therefore, transfer certificate cannot be given. Hearing this, the applicants started abusing the complainant and hurled obscene expletives. Applicant No.1 - Smt. Reeta Jaiswal caught hold of the saree of the complainant and slapped her and assaulted resulting in breaking of spectacles and the chain worn by the complainant on her neck. Applicant No.2 - Vinod Jaiswal slapped husband of the complainant. A witness namely, Sohan when tried to intervene, he was also caught hold by neck and thrown to the ground.

The report was lodged and after investigation, charge-sheet was filed under Sections 452, 323, 294, 506 and 34 of IPC.

Learned counsel for the applicant submits that provisions of Section 452 of IPC are not applicable in the case as it cannot be stated that house-trespass was committed after preparation of hurt or assault. He has referred to Section 452 of IPC, which is reproduced below :-

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 re-straint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Citing the case laws of State of Haryana vs. Prem Singh(Cr. A. No.444-DB/1997) of Punjab & Haryana High Court, it has been stated that the school premises cannot be termed to be of human value. Further the judgement of M. P. High Court in an order pronounced in Kuber Singh @ Kumer Singh Pawar vs. Collector (M.Cr.C. No.10126/2015) on 09.09.2015 has been cited in which it has been stated that no weapon was found to be carried by the accused and therefore, provisions of Section 452 are not applicable.

On due consideration of the aforesaid, it is found that in absence of any weapon having been carried by the applicant within the school premises, it cannot be stated that trespass was committed after making preparations for causing hurt or assaulting any person or for putting any person in fear of hurt, or of assault, or of wrongful restraint. Therefore, provisions of Section 452 of IPC are not attracted in this matter.

The next question before this Court is whether the act of entering into the school premises un-authorisedly does not constitute "house-trespass"?

Learned counsel for the applicant has invited attention of this Court towards the case of State of Haryana (supra), as per which school premises are not place of human dwelling therefore, "house-trespass" is not constituted. The word "house-trespass" is defined under Section 442 of IPC as under :-

House trespass.-Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass". Explanation.-The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass.

Thus, one can see that house-trespass can be considered not only in respect of a building used for human dwelling but also in respect of a building used as place of custody of property. School building is indeed a place for the custody of property as furniture and other paraphernalia are stored within the school premises and any trespass of such building would constitute house-trespass and the punishment for house-trespass is provided under Section 448 of IPC. Consequently, the charge under Section 448 of IPC ought to have been framed in respect of Section 452 of IPC. An alteration/amendment in the charge be made by the Presiding Officer. It is made clear that apart from charge under Section 448 of IPC, there is no dispute in respect of other heads of charges viz. 323, 294, 506 and 34 of IPC. The revision application is thus allowed in part and disposed of in above terms.

A copy of this order be sent to the Trial Court for due compliance.