Section 457 of Indian Penal Code, 1860 – Explained!
The Allahabad High Court has held that the latter part of the section is attracted where there exists not only an intention to commit theft but that actual theft must have been committed. With respect, this does not seem to be correct. Where the accused could not explain the recent possession of stolen property which was connected with the offence of house-breaking by night, he was held guilty under sections 380 and 457.
Where the accused was convicted of lurking house-trespass by night but the evidence established that he had also broken open the door of the shop, the conviction was altered to one for housebreaking by night under this section. Where the accused persons had committed the offence of house-breaking by night in order to the committing of the offence of abduction of a woman, this section was held to be attracted.
Where the accused committed house- trespass by night without having taken precautions to conceal such house-trespass from some person who had a right to exclude or eject the trespasser from the building which was the subject of the trespass, it was held that he could not be held guilty of lurking house-trespass by night under this section, but was liable under section 451 of the Code.
In Akhaya Behera v. State of Orissa it was held that the offender must take some active means to conceal his presence for section 457 to apply, and the mere fact that house-trespass was committed by night and the darkness helped the accused to conceal his presence does not constitute the offence under this section.
In Quddus v. State of U.P., considering the fact that the accused was undergoing trial for a long period of about 15-16 years, the sentence of imprisonment of one year was reduced to imprisonment of three months by the Allahabad High Court.
In State of Gujarat v. Miyama Abraham Mamad there were allegations that the accused entered a house by removing sheet of roof and inflicted knife blows on the deceased resulting into her death and injured others. The case was proved beyond reasonable doubt with the help of cogent evidence and the accused was held guilty under sections 302, 324 and 457, Indian Penal Code. The Gujarat High Court held that his acquittal was not proper and the false defence of alibi does not destroy the prosecution case.
The offence under section 457 is cognizable, non-bailable and non-compoundable, and is triable by magistrate of the first class.