Jaipal Singh vs State of Haryana and another

D.S. Tewatia, J.—Jaipal Singh petitioner has invoked the inherent jurisdiction of this court for quashing the order dated 14, 1978, made on a complaint of Daya Chand, respondent No 2, summoning the petitioner on an accusation u/s 436, (sic) Penal Code, and the subsequent proceedings, primarily on the ground (i) that regarding the very occurrence an F.I.R. was lodged by the said Daya Chand with the police on 8.10.1977 which was cancelled on 3.2.1978, and procreating u/s 182 I.P.C. had been launched against him (2) that the petitioner could not have been (sic) by the trial Magistrate without first examining on oath all the with (sic) on whose testimony the complainant Daya Chand had (sic) and (1) that the assertions made in the complaint did not (sic) offence including the one u/s 436 I.P.C. inasmuch as the hut, which was said to have been set on fire by the petitioner did not constitute a building as envisaged in section 436 I.P.C.

The aforesaid contentions have been desired to be appreciated in the it be of the facts that certain plot was owned by one Sultan Singh one of the witnesses of the complainant Daya Chand. This Sultan Singh, had lodged a complaint for starting proceedings, under sections 107/151 Cr.P.C. against the petitioner and some others. On the basis of that complaint, police put up Kalendra under sections 107/151 Cr.P.C. on 5.10.1977. On 17.10.1977 the petitioners said to have taken the possession of the said plot of Sultan Singh and with the brick lying thereon had enclosed the said plot by constructing four walls, on the midnight of 7/8-10-1977 Daya Chand''s but (Chhapper) adioing the said plot was said to have been set on fire by the petitioner An F.I.R. regarding the said incident was lodged by Daya Chard on 8.10.1977 at 5.50 p.m. On 20.1.1978 the present complaint was filed by Daya Chand in the Court of the Additional Chief Judicial Magistrate, Sonepat. On 3.2.1978 the F.I.R. dated 8.10.1977 is said to have been cancelled by the very Magistrate, that is, the Additional Chief Judicial Magistrate. On 14.7.1978 the very Magistrate had examined the complainant and his two witnesses and on 14.8.1978 older, annexure P.2, summoning the petitioner u/s 436, I.P.C. was passed. In response to the said summons the petitioner appeared before the said Magistrate on 21.10.1978 and there after for the consideration of the case three further adjournments were given which were 15.11.1978, 25.2.1979, 4.8.1979 and it is thereafter that the petitioner filed the present petition for quashing of the order, annexure P.2, and the subsequent proceedings

In support of the first contention, Mr. Kundu, learned counsel far the petitioner, referred me to the provisions of section 210, Criminal Procedure Code, and urged that the enquiry and trial of the complaint ought to have been stayed during the pendency of the investigation of the case by the police and that, in any case, it would be anamolous that, on the one hand, the Magistrate had cancelled the F.I.R. at the instance of the police, and on the other, the very Magistrate, at the same time, on the basis of the complaint filed by Daya Chand, proceeded to summon the petitioner for the very offence.

It may be observed that the complaint was filed on 23.1.1978 perhaps on coming to know as to what the police proposed to do with the F.I.R. The police submitted its report to the Magistrate on the basis whereof on 3.2.1978 the F.I.R. was cancelled. The moment the F.I.R. was cancelled the police investigation came to an end and therefore, the question of staying of the enquiry or trill of the complaint any further did not arise, and the learned Magistrate was free to resume the enquiry into complaint on 3.2.1978.

As regards the anomoly pointed out by the learned counsel for the petitioner, it may be observed that cancellation of F.I.R. at the instance of the police is entirely different from the trial of the complaint on the basis of the testimony of the witnesses on oath. The police as not supposed to examine the witnesses on oath. The state menu allegedly given to the police by the witnesses, which were taken into consideration by the Police and later on by the Magistrate are not even supposed to be signed by the witnesses. Therefore, when these very witnesses come forward to support the complaint on oath the Magistrate concerned, in such a contingency, is bound to re-examine the position and he is not precluded by an earlier consideration on the basis of statements recorded by the police without oath

As regards the second contention that the petitioner (accused) had been summoned without fallowing the procedure laid down in section 202 of the Criminal Procedure Code, the learned counsel sought sustenance from a Division Bench decision of this Court reported in Raj Pal Sood v. Ravinder Nath Vehra (1977) 79 P.L.R. 674: (1977) 4 Cr. L.T. 385 in which it was held that :

The combined reading of all these provisions would show that the legislature thought it fit to divide the cases into two categories. The first category of cases is where the Magistrate feels satisfied after recording the statement of the complainant and the witnesses present u/s 200, i.e. cesses of the type that by mere examination of the complainant and witnesses which he chose to produce the Magistrate fours the opinion that there is prima facie case to issue process against the accused. The second category of cases is where the Magistrate is not satisfied after recording the statement of the complainant and the witnesses produced by him and he feels that further inquiry into the matter is necessary. In that case he can hold further inquiry and in view of the proviso to sub-section (2) of section 202 of the Code he is enjoined upon to record the statement of all the witnesses relied upon by the complainant. If further enquiry is held in that case proviso to sub-section (2) of section 202 will have to be complied with.

There is no quarrel with the preposition enunciated in the decision quoted above that in case the Magistrate is not satisfied by the statements of the complainant and his witnesses examined on oath, that ho should summon the accused and decides that before summoning the accused further enquiry into the matter is necessary then he has to follow the procedure indicated in section 202, Criminal Procedure Code, sub section (2) whereof is in the following terms:

202 (2) In an enquiry under sub section (1) the Magistrate may, if he thinks fit, take evidence of the witnesses on oath:

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, ho shall call upon the complainant to produce all his witnesses and examine them on oath.

The learned counsel for the petitioner urged that if on the very first date, on which the complaint is filed, an order summoning the accused is not made, that should mean that the Magistrate was not satisfied that a case was made out for summoning the accused and that from this ipso facie it follows that later on the was to summon the accused, he must comply with the procedure indicated by section 202 of the Criminal Procedure Code. In my opinion, the aforesaid contention is based on misconception of the ratio of the decision aforesaid. No such proposition has been enunciated in the said decision. Take for instance, a case where a complaint is placed before a Magistrate at the fag end of the day and he has time enough to examine the complaint and not the witnesses present with him and he has to give a next date; Can it be said that he was not satisfied with the statement of the complainant and therefore had not summoned the accused that very day and he had adjourned the case to the next date for the examination of the witnesses (who were present before him even on day) it must be presumed that he had decided to enquire into the matter further and, therefore, procedure u/s 202 Criminal Procedure Code, must be complied with ? In my opinion such a procedure would become applicable only if he Magistrate makes a conscious order to the effect that after perusing the statements of the complainant and the witnesses, who were present and got examined by the complainant, the was not satisfied that a case was made out for summoning the accused and that he wished further to enquire into the matter. It is not the case of the petitioner that such an order had been passed by the Magistrate.

Coming now to his third contention that the facts allege in the complaint did not disclose an offence u/s 436, I.P.C. it would be necessary to extract the relevant portion of the complaint and it is in these terms:

9 That because of heavy rains our house had collapsed and we had constructed a hut for residential purposes My 2 cots, 2 drums and Rs. 50/�in cash, were lying in my hut and these were burnt

That Jai Pal accused intentionally and mala fide set fire to my residential hut in order to harm the complainant. Complainant used the but for residential purposes and domestic belongings were lying therein Therefore Jai Pal accused has committed the offence under sections 135/436 I.P.C.

A perusal of the portion extracted above would leave no manner of doubt that the hut, which was set on fire, satisfied the ingredients of a ''building'' mentioned in section 436, Cr.P.C. in that the hut was used as a dwelling place as a result of the collapse of the kutcha house during the rainy season

The learned counsel for the petitioner, however, urged that only a hut having doors and furnishings could be treated as a building and sought support for the aforesaid argument from the decision of the Allahabad High Court reported in Babulal and another v. State 1952 Cri. L.J. 299: AIR 1951 All. 146 and drew pointed attention to the following observations of Bhargava, J�

A structure made of straw and not of bricks and mortar may be considered a building if it has got the necessary furnishings needed for a building, such as doors, bars, etc. An ordinary double thatched shed resting on bamboos or wooden or brick pillars having no doors etc cannot be treated as a building within the meaning of that term used in section 436, Penal Code. The building referred to in the section is a building which can be used as a place of worship or as a human dwelling or as a place for the custody of property. The word ''custody'' is undoubtedly different from the word ''keeping'' and it "implies a sense of security which would be wanting in the case of a shed, which is only meant to provide shelter from sun and ram and which has no doors etc, consequently, where a thatched shed for teethering horses is destroyed in the fire due to mischief the offence falls u/s 435 and not under S 436, Penal Code.

With great respect to the learned Judge, I find it difficult to subscribe to the view enunciated in the observations noticed above. If such would be the people living in huts, which do not have doors and furnishings of interpretation of the expression ''building'', then poor people living in huts which do net have doors and furnishings of the kind that these are understood in common parlance, then they would have no protection against people indulging in arsoning. In my opinion a buliding used as a dwelling place by human beings, whether it has doors or not or whether it has been furnished or not, it would answer, the disruption of the expression ''building'' used in section 436, Criminal Procedure Code

For the reasons a for said, I find no merit in this petition and dismiss the same.