GULAM RASUL KHATAB HUSSAIN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) [His Lordship after sustaining the conviction of the accused further observed :]

(2.) This brings me to the second facet of this revision application and there the petitioner stands on a firmer footing. Sec. 456 (1) of the Criminal Procedure Code reads as follows :-

(3.) This brings me to the consideration of the first condition. The accused has been convicted of the offence under sec. 453 I. P. C. that is house-breaking but house-breaking as defined in sec. 445 consists of various different kinds of acts. Barring 5th category where criminal force as defined in secs. 349 and 350 of the I. P. C. is specifically referred to the force or show of force do not figure in any other types of acts of house-breaking. The evidence on record bears out that the lock was broken open during the hours of night in a surreptious manner. So the house-breaking in this case was effected during hours of night in the manner styled as fourthly in sec. 445 which clause fourthly does not refer to use of force or show of force or intimidation. So it is difficult to say that the accused is convicted of offence in which criminal force or show of force or criminal intimidation attended the offending act. If any authority in support of this preposition is needed we can with advantage advert to the judgment of the Mysore High Court in the case of Ramsingh Babanji v. State of Mysore 1912 Criminal Law Journal 1212 where it has been specifically laid down that where the accused effects forcible entry into the complainants house by breaking open the lock in the absence of the complainant or anybody else on his behalf there is no use of force against the complainant. The very definition of the term force and `Criminal force respectively in sec. 349 and 350 also presupposes the employment of force unto an individual or unto something which is closely connected with the individual. In other words force as understood in the criminal law has got reference to or nexus with a person and not to or with an inanimate article. Another case which can be referred to in this connection is the case of Gordhan Das v. State A. I. R. 1968 Raj. 241 where also it has been observed that where entry is effected by breaking open of the lock of a house in the absence of the complainant or his man the Magistrate would have no power to pass an order under sec. 456 of the Criminal Procedure Code (at that time there was corresponding sec. 522 (1) of the then Criminal Procedure Code. There is no difference between that erstwhile sec. 522 (1) and the present sec. 456 (1) ).