Kerala High Court: Police Station Can Be Regarded As Building Used For Custody Of Property; Satisfies Definition Of House Trespass U/S 442 IPC

The Kerala High Court has held that a police station can be regarded as a building used for the custody of property and hence, satisfies the definition of house trespass under Section 442 of the Indian Penal Code, 1860 (IPC).

The Court held thus in a Criminal Appeal preferred by the accused persons, challenging the Judgment of conviction and sentence passed by the Trial Court.

A Single Bench of Justice Bechu Kurian Thomas observed, “Section 6(2) of the KP Act stipulates that there must be sufficient storage space for the safe keeping of articles in custody, official records and official arms and ammunition and even sufficient facilities for the safe custody of the accused and those in custody. A combined reading of the above statutory provisions makes it explicit that police stations in Kerala can be regarded also as buildings used for the custody of property, thereby satisfying the definition of house under section 442 IPC.”

The Bench clarified that a police station cannot be regarded as a building used for human dwelling or as a place of worship, even if some persons may sleep there at night or even conduct prayers for themselves.

Advocates S. Rajeev and V. Vinay appeared for the Appellants/Accused, while Public Prosecutor Sreeja V. appeared for the Respondent/State.

Factual Background

As per the prosecution case, group of people under the leadership of the 1st accused, created public nuisance at 9.15 pm on 16.08.2009 at Vazhichal junction in connection with an election to the Service Co-operative Bank at Ottasekharamangalam. The prosecution alleged that after the above incident, at 9.45 pm on the same day, under the leadership of the 1st accused, a group of people numbering to 14, formed themselves into an unlawful assembly. Thereafter, in prosecution of their common object, they allegedly trespassed into the Aryancode police station and committed rioting, armed with deadly weapons. In that process, the accused allegedly caused hurt to the policemen on duty, apart from outraging the modesty of a woman Police Constable, who was on sentry duty.

The accused also shouted obscene words, while accused nos. 2 and 3 attempted to commit culpable homicide not amounting to murder on one by kicking on his vital parts which if not warded off, would have resulted in his death. The accused restrained another and damaged his name plate and whistle chord, apart from damaging the chairs and the collapsible grill gate of the police station, thereby causing a loss of Rs. 15,000/- to the Government and thus, allegedly committed the offences under Sections 143, 147, 148, 149, 452, 323, 332, 308, 294(b), 354, and 427 of IPC, apart from Sections 3(1) of the Prevention of Damage to Public Property Act, 1984 (PDPP Act). The Trial Court acquitted accused nos. 4 and 6 to 14, while convicted accused nos. 1 to 3 (Appellants herein), except under Section 308 of IPC. Being aggrieved, they were before the High Court.

Reasoning

The High Court after hearing the contentions of the counsel, noted, “… it is competent for a court to come to a conclusion that there was an unlawful assembly of five or more persons, even if the number of convicted persons is less than that, provided, the evidence adduced by the prosecution discloses the existence of other persons as part of the unlawful assembly. Further, the court must be convinced that there were other persons involved in the assembly, who numbered totally more than five.”

The Court said that an assembly would not become unlawful unless there was a common object and that common object runs through a minimum of five persons and in the instant case, there is a total dearth of evidence to convince the Court that there were five persons or even more who had entertained a common object to commit an offence as prescribed under Section 141 IPC.

“Thus, it cannot be held that there was an unlawful assembly and hence, section 143, 147 and 148 are not attracted, while accused 2 and 3 cannot be roped in under section 149 IPC”, it added.

The Court remarked that if a police station falls under any of the categories of buildings mentioned in Section 442 IPC, the contention raised by the accused regarding inapplicability of the offence under 452 IPC will have to be rejected.

“A police station is no doubt a building. … Thus, the consideration narrows down to whether a police station can be regarded as a building used for the custody of property. Section 2(s) of Cr.P.C defines a police station as “any post or place declared generally, or specially by the State Government, to be a police station.........”. Section 5 of the Kerala Police Act, 2011 (for short ‘the KP Act’) provides for establishment of police stations while section 6 deals with facilities at police stations”, it further observed.

The Court took note of the fact that all the witnesses had spoken about the involvement of the first accused while there are inconsistencies regarding the involvement and role of the second and third accused.

“It is therefore evident that the first accused had entered the police station and it being a place for custody of articles, the offence section 452 IPC gets attracted as against the first accused. As far as second and third accused are concerned, there is no convincing evidence to come to a conclusion that they trespassed into the police station. They are hence entitled for the benefit of doubt”, it also said.

Conclusion

Furthermore, the Court noted that there is no evidence to come to a conclusion that the use of criminal force was with intent to outrage the modesty of women police constable and hence, the accused cannot be found guilty for the offence under Section 354 IPC as well.

“The nature of evidence adduced by the prosecution as well as the defence, persuades this Court to conclude that the injuries on the body of the accused, despite being very minor had even been explained satisfactorily by the prosecution”, it concluded.

The Court, therefore, affirmed the conviction of 1st accused under Sections 452 and 323 of IPC, but set aside the same under remaining Sections, and acquitted accused nos. 2 & 3.

Accordingly, the High Court partly allowed the Criminal Appeal.

Cause Title- Binu Thankappan & Ors. v. State of Kerala (Neutral Citation: 2025:KER:91907)

Appearance:

Appellants: Advocates S. Rajeev, V. Vinay, M.S. Aneer, Sarath K.P., Prerith Philip Joseph, Anilkumar C.R., K.S. Kiran Krishnan, and Abdul Rasheed N.

Respondent: Public Prosecutor Sreeja V.

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