JUDGMENT :

1. In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned.

2. This criminal revision petition under Section 397 read with Section 401 Cr.P.C. has been preferred claiming the following reliefs:

“It is, therefore, most respectfully and humbly prayed that this revision petition may kindly be allowed and the impugned order dated 9.8.2018 passed by the learned Addl. Sessions Judge, Jaitaran, District Pali, in Sessions Case No. 11/2017 for the offence U/s 458, 323, 324, 325, 307/34 of Indian Penal Code may kindly be modified to the extent of framing the charges U/s 459 IPC in place of Section 458 IPC against the respondents accused in the interest of Justice.”

3. Learned counsel for the petitioner submits that the order, dated 09.08.2018, passed by the learned Addl. Sessions Judge, Jaitaran, Pali in Sessions Case No. 11/2017, has not rightly appreciated the facts and circumstances of the case at hand, and that the said order suffers from an incorrect framing of charges, to the extent that a charge was framed under Section 458 IPC instead of Section 459 IPC, and that it therefore ought to be modified accordingly.

4. Learned counsel for the petitioner submits that the incident in question, for which the charges were so framed by the learned Court below are that the accused respondents illegally and forcibly entered into the house of the petitioner complainant, along with lathis, sariyas and swords and inflicted grievous injuries upon the complainant petitioner’s son and her husband, on 31.9.2016 at about 10:15 p.m in the night whilst being in the house-premises of the complainant petitioner. And that, therefore, it is evident that the charges so framed, should have been framed under Section 459 instead of Section 458 IPC.

5. Learned counsel for the petitioner placed reliance on the following judgments:

6. Sahnaz Uddin Laskar Vs. State of Assam Criminal Appeal No. 62 (J) of 2015 (Gauhati High Court) wherein the Hon’ble Court held asunder:-

“The learned Sessions Judge having perused such evidence convicted the accused under section 459 of the Indian Penal Code but in view of the fact that the accused did not assault on the victim inside the house but did so by dragging her outside, we are of the view that the offence committed by the accused does not attract section 459 of the Indian Penal Code but thereby he has committed an offence under section 326/453 of the Indian Penal Code. This is because an offence under section 459 of the Indian Penal Code involves committing lurking house trespass or house breaking and causing grievous hurt in course of such trespass. If grievous hurt is caused either while making lurking house trespass or while inside the house wherein the trespass had taken place, then and then only section 459 of the Indian Penal Code would apply. Here, in this case, the accused trespassed into the house of the victim and thus committed house breaking and then dragged her outside and sought to commit rape but on being resisted stabbed on her person four times causing grievous hurt and thus section 459 of the Indian Penal Code would not apply.”

7. Emperor Vs. Said Ahmad and Anr. Allahabad High Court AIR 1927 All 536 decided on 19.04.1927, wherein the Hon’ble Court held:

“The Magistrate has put on the record his reasons for holding that no offence under Section 459 could be held to be established. His reason is this in brief. The offense of housebreaking is complete when entry into the house is effected and any grievous hurt, subsequently caused by the persons breaking into a house cannot be said to be grievous hurt caused while they were committing the house-breaking. I was at first disposed on reading the section to hold that this was taking too narrow a view of the language, of it. But, on consideration of the section with the connected sections of the Indian Penal Code, I thi