P.N.Harkauli - (1.) GAURI, applicant, was convicted by the learned Addl. District Magistrate (Judicial) under Sections 457 and 224 IPC, and was sentenced to nine months rigorous imprisonment and a fine of Rs. 50/- on the former charge and to six months rigorous imprisonment and fine of Rs. 50/- on the latter charge. Bachcha Lal, applicant, was convicted under Section 457 and 225 IPC and was sentenced to nine months rigorous imprisonment and fine of Rs. 50/- on the first charge and six months rigorous imprisonment and a fine of Rs. 50/- on the latter charge. The substantive sentences of both the applicants under the charges were ordered to run concurrently. Both these applicants preferred an appeal but the learned Sessions Judge dismissed their appeal. Hence this revision.
(2.) THE learned counsel for the applicants contended that there was no evidence in this case to show that the applicants had taken any active steps to conceal their presence and, therefore, the offence could not amount to one of lurking house trespass. In support of this contention, reliance was placed on a decision of this court in Chhadami v. Emperor, AIR 1940 Alld. 259. I have gone through the evidence and I find that there is nothing therein to show that either of the applicants had taken any active means to conceal their presence. THE mere fact that they are alleged to have committed house trespass by night cannot, as held in the aforesaid ruling, make the house trespass a lurking house trespass. In the circumstances, it must be held that the applicants could not be said to have committed the offence of lurking house trespass. However, the evidence shows that the applicants entered the house of the complainant at night and when members of the complainant's family woke up they fled from there and when Gauri was chased and caught his accomplice beat the pursuers and secured his release. It is thus a clear case of house trespass and is, therefore, punishable under Section 448 IPC. Coming now to the offence under Sections 224 and 225 IPC, the applicants can only be convicted if it is shown that Gauri had been lawfully apprehended. Now Section 59 of the CrPC 1898, which would govern this case, lays down that a private person can arrest another who, in his view commits a non-bailable and cognizable offence. Now the offence under Section 448 though cognizable was bailable. Therefore, the complainant and the witnesses did not have the right to arrest Gauri and if that is so even if Gauri escaped from their custody and Bachcha Lal helped him in escaping from custody, neither of them can be said to have committed an offence under Sections 224 and 225 IPC. Their conviction under these sections therefore, are liable to be set aside. Accordingly, the revision application is allowed in part. The convictions of Gauri and Bachcha Lal under Section 457 IPC are set aside and instead they are convicted under Section 448 IPC Their convictions and sentences under Sections 224 and 225 IPC are set aside.
(3.) CONSIDERING the circumstances of this case, I am of the opinion that it would not be proper to send the applicants to jail in respect of the offence under Section 448 IPC and that they should be given the benefit of the First Offenders Probation Act. Accordingly, I order that if the applicants furnish a personal bond for Rs. 1000/- with two sureties in the like amount to the satisfaction of the learned Chief Judicial Magistrate, Ghazipur undertaking to appear and serve out the sentence whenever called upon to do so within the next one year and in the meantime to keep the peace and be of good behaviour, they shall be released on probation. The applicants are given three months time from today to furnish the necessary bonds. If they or any of them, fail to do so, the defaulting applicant shall undergo three months rigorous imprisonment under Section 448 IPC. Ordered accordingly.;