BERI, J.—This is a reference made by the Additional Sessions Judge No. 2 Jodhpur recommending that the order of the Additional Munsiff Magistrate No. 2, Jodhpur dated 20th April, 1966, whereby he committed Bhanwarlal for facing trial under sec. 459 of the Indian Penal Code, be quashed as no offence under that section was made out, and that the applicant may be tried by the learned Magistrate. 2. The circumstances which it is necessary to notice in order to decide this important and interesting question briefly stated are these : At about 4 a. m. on the 14th June, 1959 Mst. Parbati a young widow was sleeping on the terrace of her house and heard the foot steps of some one which disturbed her sleep and she noticed petitioner Bhanwerlal and one Shrikishen standing by the side of her cot. They demanded sexual intercourse from her and when she declined to oblige Bhanwarlal inflicted a dagger blow on her head and ran away. Shrikishen also inflicted a few knife blows on this woman. A report of the occurrence was lodged with the police but after investigation the police gave a final report. Consequently Mst. Parbati instituted a complaint under secs. 307, 458, 323 and 324 of the Indian Penal Code on 8th September, 1959. A case under secs. 324 and 457 of the Indian Penal Code was registered against Bhanwarlal and Shrikishan. Proceedings against Shri Kishen were dropped as he could not be served. The trial proceeded against Bhanwarlal and he was convicted on 23rd October, 1961 under secs. 326 and 458 of the Indian Penal Code. The learned Sessions Judge, Jodhpur by his order of 17th February, 1962 acquitted him on appeal. The High Court on an appeal against acquittal remanded the case for retrial. Charges under secs. 325 and 457 of the Indian Penal Code were framed against the petitioner and the evidence of the parties was closed on 23rd March, 1966. After, part of the arguments were heard the complainant urged that charge against Bhanwarlal should be framed u/s. 459 of the Indian Penal Code and with this submission the learned Magistrate agreed and framed a charge under that section and since it was exclusively triable by the Court of Session he committed the petitioner to face his trial in that Court. By transfer the case came before the Additional Sessions Judge No. 2, Jodhpur. By transfer the case came before the Additional Sessions Judge No. 2, Jodhpur. Before the said learned Judge an argument was raised on behalf of the accused that the facts as disclosed by the prosecution did not make out a case u/s. 459 of the Indian Penal Code and his commitment order was, therefore, highly unjust and improper. This argument found favour with the learned Additional Sessions Judge. According to his interpretation the word whilst occurring in sec. 459 of the Indian Penal Code persuaded him to hold that the offence of house breaking was complete as soon as an entry into the house was effected and any grievous hurt subsequently caused by the person breaking into a house could not be held to be grievous hurt caused while the accused was committing the house breaking. He has accordingly made the recommendation that the order of commitment be quashed. 3. Mr. Bhimraj appearing for applicant Bhanwarlal supports the reference. He relies on Queen Empress vs. Ismail Khan (1), Sed Rasul vs. Emperor (2), Maha-mmad vs. Emperor (3) and Said Ahmad vs. King Emperor (4). Mr. Utsavlal appearing for Mst. Parbati opposes the reference and has placed reliance on Chatur vs. King Emperor (5), Pramudin vs. The Grown (6) and Inayat Ali vs. The Emperor (7). 4. In order to appreciate the arguments advanced by Mr. Bhimraj and accepted by the learned Additional Sessions Judge a broad survey of the offences included under the sub-head criminal trespass in the Indian Penal Code will be profitable. 5. Sec. 441 of the Indian Penal Code defines criminal trespass as follows— "Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit criminal trespass" 6. Entry into or unlawfully remaining upon the property in the possession of another with any of the intentions indicated in the section amounts to criminal trespass which by itself is punishable lightly unless it is attended with aggravating circumstances. The authors of the Code say that— "These aggravating circumstances are of two parts. Criminal trespass may be aggravated by the way in which it is committed. The authors of the Code say that— "These aggravating circumstances are of two parts. Criminal trespass may be aggravated by the way in which it is committed. It may also be aggravated by the end for which it is committed." (See Note N, p. 108 —quoted from the Law of Crimes by Rattanlal and Dhirajlal, Twenty First Edition at p. 1188). 7. Assessing the gravity of agravated forms of criminal trespass by reference to the quantum of maximum punishment of imprisonment with which each one of them is punishable, and ignoring in the interest of brevity the sentence of fine, the variations of criminal trespass may be noticed. Trespass into a house, which term includes building, tent or vessel, etc. is an aggravated form of criminal trespass. (See sec. 442 I.P.C.). While criminal trespass is punishable under sec. 447 I.P.C. with three months imprisonment, house trespass is punishable with imprisonment for one year under sec, 448 I.P.C. 8. The offence of house trespass is further aggravated by reference to the gravity of the offence to commit which house trespass is made. If the offence aimed is punishable with death house trespass is punishable with transportation for life or 10 years imprisonment. (See Sec. 449 I.P.C.) If the intended offence for which house trespass is committed is punishable for transportation of life then house trespass is punishable with imprisonment of 10 years (See Sec. 450 I.P.C.) If house trespass is committed after having made preparation for causing hurt or assault to any person or for wrongfully restraining any person or for putting any person in fear of hurt or assault or wrongful restraint it is punishable with 7 years. (See Sec. 452 I P.C.) If the offence for the commission of which house trespass is committed is punishable with imprisonment only then house trespass is punishable with 2 years. However if the purpose of house trespass is theft then the punishment is 7 years. (See sec. 451 I.P.C). 9. Lurking house trespass and house breaking are aggravated forms of house trespass. Lurking house trespass has the predominant ingredient of surrepti-tion. (See sec. 453 I.P.C.) Housebreaking consists of entering into a house by an opening other than the ordinary or by force. Both these offences are punishable under sec. 453 I P.C. to 2 years imprisonment. 451 I.P.C). 9. Lurking house trespass and house breaking are aggravated forms of house trespass. Lurking house trespass has the predominant ingredient of surrepti-tion. (See sec. 453 I.P.C.) Housebreaking consists of entering into a house by an opening other than the ordinary or by force. Both these offences are punishable under sec. 453 I P.C. to 2 years imprisonment. Then again the gravity of lurking house trespass or house breaking is aggravated by reference to the purpose for which it is committed; for the commission of an offence punishable with imprisonment it is punishable by three years and if theft is intended it is 10 years. (See sec. 454 I.P.C.) If it is committed with the intention of causing hurt or assault or wrongful restraint or fear thereof it is punishable by 10 years. (See sec. 455 I.P.C.) Lurking house trespass or house breaking have another aggravated variation. If it is committed between sunset and sun rise it is punishable with 3 years (See sec.456 I.P.C.) This is by reference to the point of time when the offence is committed. Therefore if either of these two offences of lurking house trespass or house breaking are committed by night with the object of committing an offence punishable with imprisonment then such an offence is punishable with imprisonment of 5 years and if the intention is theft the imprisonment may be extended to 14 years. (See sec. 457 I.P.C.) If lurking house trespass and house breaking by night are committed after having made preparation for causing hurt or assault or wrongful restraint or putting any person into fear of any of these then the punishment provided is 14 years. (See Sec. 459 I.P.C.) Then comes the offence under sec. 459 of the Indian Penal Code. It reads— Sec. 459—"Whoever, whilst committing lurking house-trespass of house-breaking, causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to five." 10. In the case before me I have to ascertain the meaning of the expression whilst committing lurking house-trespass or house-breaking which I have underlined (italic) above. Before I proceed to do so let me briefly notice the cases to which I have been referred. 11. In the case before me I have to ascertain the meaning of the expression whilst committing lurking house-trespass or house-breaking which I have underlined (italic) above. Before I proceed to do so let me briefly notice the cases to which I have been referred. 11. In Queen Empress vs. Ismil Khan and others(l), Straight, Offg. C.J., dealt with a case where the appellants were engaged in making a hole in the wall of the house of the complainant, when they were disturbed by the Chowkidar. They attempted to make good their escape and one of the appellants Ismailkhan fired a pistol. Ismailkhan was convicted by the Sessions Judge for an attempt to commit the offence provided in sec. 459 of the Indian Penal Code. The learned Judge of the High Court observed that sec. 459 was not made out as lurking house-trespass and house-breaking were never completed, and since the grievous hurt or attempt to cause death or grievous hurt was not in the course of the commission of lurking house-trespass or house-trespass or house-breaking Ismailkhan was not liable under sec. 459 read with sec. 511 of the Indian Penal Code. 12. In Sed Resul and another vs. Emperor(2) the circumstances were that the accused broke into the house of one Thakar Singh at night with an intent to commit theft armed with deadly weapon. On an alarm being raised they left the house and in the court-yard stabbed one Ramsingh who tried to seize them injuring him so that he died later on. The learned Judge held that as the house-breaking was not complete sec. 460 I.P.C. did not apply and the offence committed was under sec. 457. 458 and 326 of the Indian Penal Code. 13. In Muhammed vs. Emperor(3) four thieves broke into the house of Mulla by effecting a breach in the wall of his house. He was awakened by noise and saw three men standing outside the breach and fourth man just coming out of the hole. Three men ran away when they saw him, but he secured the man whom he had noticed coming out of the breach in the wall. The other three returned to rescue the captured man and succeeded in rescuing him by beating Mulla with sticks. Three men ran away when they saw him, but he secured the man whom he had noticed coming out of the breach in the wall. The other three returned to rescue the captured man and succeeded in rescuing him by beating Mulla with sticks. When all the four were running Hassu a neighbour caught hold of one of them and received certain injuries in the transaction on account of which he died on the spot. The learned Judge held that sec. 400 I.P.C. was not made out but the conviction should have been under sec. 457 of the Indian Penal Code. 14. In Said Ahmad vs. King Emperor (4) the facts were : Ramkaransingh Kotwal of Ghasipur & Suraj Nath Singh the, Excise Inspector obtained a warrant to search the house of one Mohit Khan for illicit opium. He proceeded to the block of building in which that house was situate and in which were said to be the houses of Farrukhsher Khan and Mst. Amina Bibi. Some constables were directed to scale a wall. A dispute arose in the house inside the block of building and Farrukhsher Khan was injured. Farrukhsher Khan filed a complaint against, the police for house-breaking and other offences. Mst. Amina Bibi and two others filed a similar complaint. The Magistrate refused to frame a charge under sec. 469 of the Indian Penal Code. The argument which prevailed with the Magistrate for refusing to frame a charge under sec. 459 IPC was that the offence of house-breaking was complete when an entry into the house was effected and any grievous hurt subsequently caused by the person breaking into the house cannot be said to be grievous hurt caused while they were committing house breaking. The case came before Ashworth J. who observed— "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 corrected sections of the Indian Penal Code, I think that the Magistrate was correct in his view............ The case came before Ashworth J. who observed— "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 corrected sections of the Indian Penal Code, I think that the Magistrate was correct in his view............ Criminal statutes have to be construed strictly in favour of the accused and, whatever view may be adopted to meet the difficulty mentioned, I consider that there is sufficient doubt arising from the language of the Code to prevent it being held that a person who has completed a forcible entry into a house should be deemed by reason of violence subsequently used, to have used violence while house-breaking. For this reason I hold that the Magistrate was justified in refusing to commit the accused on a charge under sec. 459". 15. In Chatur vs. King Emperor(5), one Chatur entered the house of one Mathra Teli and attempted to rob his little daughter of a Benaliwhich she was wearing round her neck. This happened at night. Mathra went to the rescue of his daughter and caught hold of the thief, who struggled with him, drew forth a knife and stabbed him in the belly. Mathura died within six days as a result of the stab. The question which cropped up for consideration was whether he should be convicted under sec. 460 or 302 of the Indian Penal Code. His conviction was altered from sec. 400 IPC to one under sec. 302 IPC and he was sentenced to death. 16. In Massuddin vs. Crown(6) after committing a criminal trespass the prisoner had come out and the house-trespass had ceased and then he caused grievous hurt. It was held that for applying the words "whilst committing housebreaking by night in sec. 459 it was necessary to show that the attempt was made in the period during which the offence of house-breaking (which involves house-trespass) was being committed. It was not sufficient to show that the attack was made after the house-trespass had caused. 17. The cases reported as Queen Empress vs. Ismailkhan (1), Sed Rasul vs. Emperor (2) and Mohemmad vs. Emperor (3) are cases where the trespassers had caused hurt in the process of escaping after the commission of the trespass. It was not sufficient to show that the attack was made after the house-trespass had caused. 17. The cases reported as Queen Empress vs. Ismailkhan (1), Sed Rasul vs. Emperor (2) and Mohemmad vs. Emperor (3) are cases where the trespassers had caused hurt in the process of escaping after the commission of the trespass. They do not, in my opinion, assist the interpretation of the clause whilst committing lurking house-trespass. In Chatur vs. King Emperor (5) sec. 450 I. P. C. was not considered and is therefore unhelpful. In the cases reported as Emamuddin vs. The Crown (6) and Inayat Ali vs. The Emperor (7), the learned Judges have held that if the house-trespass ceased or terminated and grievous hurt was caused thereafter sec. 450 was not attracted. The case of Said Ahmed vs. King Empror (4) had adopted the interpretation accepted by the Additional Sessions Judge in making the reference and adopted by Mr. Bhimraj before me that the expression whilst means at the moment the lurking house-trespass is being committed. The Allahabad judgment (4) the extracts of which I have quoted above proceeds on the doubts entertained by the learned Judge. I am afraid I do not share these doubts for the reasons I shall presently offer. 18. The word whilst according to the Oxford English Dictionary, 1938 Edition, Vol. III, is an obsolete form which means "during that time; meanwhile". It is indicative of a portion of time considered with respect to the duration of a transaction. I am, therefore, inclined to be of the view that during the period the house-breaking lasts if the trespasser causes grievous hurt to any person or attempts to cause death or grievous hurt the provisions of sec. 459 of the Indian Penal Code will be attracted. I am unable to take the narrow view that it is only in the process of making an entry into a house if the trespasser causes grievous hurt sec. 459 IPC is attracted, as seems to be the view taken in Said Ahmeds ease(4). The reasons are aperient for my inability, with great respect, to agree with Ashworth J. in Said Ahmeds case(4). The first is that the essential ingredient of lurking house- trespass or house-breaking is criminal trespass and that offence continues so long as the person remains upon the property in the possession of another. The reasons are aperient for my inability, with great respect, to agree with Ashworth J. in Said Ahmeds case(4). The first is that the essential ingredient of lurking house- trespass or house-breaking is criminal trespass and that offence continues so long as the person remains upon the property in the possession of another. Entrance may be surreptitious and in some cases a split-second transaction. It could not have been the intention of the legislature that if a person enters into the house of another by night having made preparations for causing hurt or assault to any person or wrongfully restraining then it would be a graver offence than the one in which a person after having entered upon the property of another causes grievous hurt. Having regard, therefore, to the scheme and the place which S. 459 occupies in the Indian Penal Code the intention of the legislature was that from the point of time lurking house-trespass or house-breaking by night commences to the time it concludes if any grievous hurt is caused or any attempt to commit death or grievous hurt is made then the trespasser shall be punished as provided for in section 459 of the Penal Code. 19. In this view of the matter, accepting the allegations of the prosecution in this case before me if Bhanwarlal entered the house of Mst. Parbati in between sun-set and sun-rise by scaling the wall prima facie he committed house breaking by night and if be caused grievous hurt on her refusal to surrender for sexual satisfaction then he caused grievous hurt whilst committing house-breaking and the charge as framed by the learned Additional Munsiff-Magistrate appears to me to be correct. I should not be taken to be expressing any opinion on the merits of the case. I have assumed the facts for the purposes of examining the legal position. 20. The result is that this reference is rejected.