1. Present applicant is involved in a case registered with Police Station Gaheja as Crime No.4/94 under sections 380, 459 and 511, P.P.C. Read with section 13-D, Arms Ordinance. The allegations against the applicant are that on the night of incident he alongwith two co-accused Karim and one unidentified person had entered the house of the complainant and tried to steal his cattle. The present applicant is said to be armed with a hatchet while co---accused Karim was armed with a gun and the third person was armed with a Lathi. On the commotion the complainant, who was sleeping at the entrance of the house on the cot, was awakened and grappled with the present applicant but the two co-accused hit him with the butt of the gun and Lathi with the result the applicant got himself freed and culprit made good their escape. It is also in the F.I.R. That during this quarrel handkerchief and cap of co-accused Karim and hatchet of present applicant were lying at the place of incident. The police after usual investigation arrested the accused and put up the challan.
2. Number of bail applications were moved on behalf of the present applicant before the trial Court and this Court but the same were rejected.
3. I have heard the learned counsel for the applicant. He has submitted that in this case section 459, P.P.C. Does not apply as there is no house-trespass committed by the accused on the very showing in the F.I.R. Itself. He has submitted that according to the version of the complainant in the F.I.R. The cattle was tethered in the open courtyard which has no door and therefore the entry in such place does not fall within the definition of house-trespass under section 442, P.P.C. He has placed reliance on number of cases. As against this the learned AA: G: has argued that any place which is fastened against the entrance is a house and would fall within section 445 (sixthly), Cr.P.C. In order to appreciate the submissions of the learned counsel it will be appropriate to reproduce the two provisions referred to above by the counsel which read as under:
442. 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".
4. Explanation.---The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass".
445. House-breaking.---A person is said to commit "house-breaking" who commits house- trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; or if, being in the house or any part of it for the purpose of committing an offence, or, having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say:--- First.---If he enters or quits through a passage made by himself, or by any abettor of the house- trespass, in order to the committing of the house-trespass.
5. Secondly.---If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building.
6. Thirdly.---If he enters or quits through any passage which he or any abettor of the house-trespass has opened, in order to the committing of the house-trespass by any means by which that passage was not intended by the occupier of the house to be opened.
7. Fourthly: -If he enters or quits by opening any lock in order to the committing of the house- trespass, or in order to the quitting of the house after a house-trespass.
8. Fifthly.---If he effects his entrance or departure by using criminal force of committing an assault, or by threatening any person with assault.
9. Sixthly: --If he enters or quits any passage which he knows to have been fastened against such entrance or departure, and to have been fastened by himself or by an abettor of the house- trespass.
10. Explanation.---Any outhouse or building occupied with a house and between which and such house there is an immediate internal communication is part of the house within the meaning of this section.
11. The definition of section 442 above shows that whoever commits criminal trespass by entering into or remaining in any building etc. Used as 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. The very F.I.R.
12. Shows that the complainant had tethered his cattle in the courtyard under a thatched shade (Mohhn). The Mashirnama of Wardat shows the courtyard is surrounded by a Katcha/Pacca wall having an entrance. Of course the Mashirnama shows that there is no door affixed in place of entrance but the complainant in his F.I.R. Has stated that he had put his cot m the entrance which is obviously to block the entry of any person in the said area of courtyard. The said courtyard has a wall around and thatched roof and the cot of the complainant having been put to block the entrance the same would certainly fall within the definition as given under section 445 (sixthly), Cr.P.C. In such circumstances prima facie the alleged act amounts to house-trespass by night and section 459, Cr.P.C. Would be applicable. However, at the time of considering bail application Court is not to go into deeper appreciation of evidence but it has only to be seen on the face of facts as they appear on the record if' the offence as alleged is made out. As discussed above I am of the view that the investigating authority has rightly applied section 459, P.P.C. In the F.I.R.
13. As regards the merits of the case, the name of the applicant has been mentioned in the F.I.R. And he has come to the complainant's house duly armed with a hatchet which shows that the trespass was made by the culprits having prepared themselves with deadly weapons, obviously with the intention to cause hurt. In these circumstances I am of the view that there is sufficient material on the record to connect applicant with the commission of the offence. The bail application is accordingly rejected. The above observations are tentative in a nature and would not prejudice the case of the accused at the' time of the trial.