Vinod Kumar Singh vs State of U.P. and Another

Ravindra Singh, J.—Heard Sri Anil Kumar Singh, learned Counsel for the applicant and learned A.G.A. for the State of U. P. and perused the record.

This application has been filed with a prayer to quash the order dated 17.6.2008, passed by the learned Additional Chief Judicial Magistrate-I, Jaunpur in Criminal Misc. Case No. 2069 of 2007 arising out of the charge-sheet submitted in case Crime No. 871 of 2006 under Sections 436, 323, 504, 506 and 427, I.P.C. whereby the application filed by the applicant for not committing the case to the learned Sessions Judge, has been rejected and the order dated 4.8.2008, passed by the learned A.C.J.M.-1, Jaunpur by which Non-Bailable Warrants has been issued against the applicant.

The facts of the case in brief are that N.C.R. of this case has been lodged by O.P. No. 2 Rajpati Yadav against the applicant and others persons under Sections 323 and 504, I.P.C. on 3.1.2007, thereafter, the application u/s 155(2), Cr. P.C. has been filed by O. P. No. 2 in the court of learned Magistrate concerned, the same was allowed and the matter was investigated by the Investigating Officer who submitted the charge-sheet on 31.5.2007 under Sections 323, 504, 506, 436 and 427, I.P.C. on which the learned Magistrate concerned has taken cognizance on 4.7.2007, thereafter, the applicant moved an application that even on the basis of the material collected by the Investigating Officer the offence u/s 436, I.P.C. is not made out, at the most offence u/s 435, I.P.C. is made out, which is triable by the Magistrate.

It is alleged that the madha (chhappar) of the first informant was set on the fire, which has been mentioned in the application u/s 155(2), Cr. P.C. that madha was used for the purpose of human dwelling and keeping some property, the property kept therein has also been burnt but during investigation non of the witness has stated that the burnt madha (chhappar) was used for dwelling and the articles which were also kept there have been burnt, even the Investigating Officer has not disclosed the name of the items which burnt inside madha (chhappar) but for the purpose of increasing the gravity of the offence, charge-sheet has been submitted u/s 436, I.P.C. which is triable by the learned Sessions Judge whereas the offence shall not travel beyond the purview of Section 435, I.P.C. which is triable by the Magistrate. The application filed by the applicant for not committing the case to Court of Sessions has been rejected by the learned A.C.J.M.-I on 17.6.2008.

It is contended by the learned Counsel for the applicant that the N.C.R. was lodged by applicant No. 2 in which there was no reference about the burning of the dwelling (madha) but subsequently, an application u/s 155(2), Cr. P.C. has been moved in which the allegation has been made that the applicant and others co-accused persons set the madha (chhappar) on fire and it has also been mentioned therein that some household articles kept therein have also been burnt but during investigation the Investigating Officer recorded the statement of the witnesses who did not state that the burnt madha (chhappar) was used for dwelling purpose or it was used for keeping some property as household articles even then the Investigating Officer has submitted the charge-sheet u/s 436, I.P.C. there is no evidence to show that any offence u/s 436, I.P.C. is made out, at the most an offence u/s 435, I.P.C. is made out, which is triable by the Magistrate, the learned Magistrate concerned has illegally rejected the objection filed by the applicant for not committing this case to the court of learned Sessions Judge, because no offence u/s 436, I.P.C. is made out. The impugned order dated 17.6.2008 is illegal, which is liable to be set aside.

In reply to the above contention it is submitted by the learned A.G.A. that in the present case the order of investigation has been passed on the application u/s 155(2), Cr. P.C. filed by O.P. No. 2 in which it has been specifically alleged that the burnt madha (chhappar) was used for dwelling purpose and the household articles have also been burnt, which were kept therein, during investigation, it has been stated by O.P. No. 2 that the madha (chhappar) alongwith the article kept therein has been burnt, the witnesses interrogated by the Investigating Officer have also supported the prosecution version. One of the witness Rajendra Singh stated that in the said incident, the madha alongwith the household articles kept therein have been burnt but the name of specific items burnt in the said incident have not been disclosed during investigation, it may be negligence on the part of the Investigating Officer but during investigation it has also come in evidence that madha (chhappar) was used for keeping the household articles of O. P. No. 2 though it has been specifically mentioned by O. P. No. 2 in the application u/s 155(2), Cr. P.C. that the burnt madha was used for dwelling but other witnesses have not specifically alleged that burnt madha was used for dwelling purpose but it has come in evidence that articles kept therein have also been burnt alongwith madha in such a circumstances, the allegation are attracting the provisions of Section 436, I.P.C. which reads as under:

Mischief by fire or explosive substance with intent to destroy house etc.-Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

According to the above definition of Section 436, I.P.C., whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished, in the present case according to the statement of the witness the burnt place was used for the custody of property, therefore, the offence u/s 436, I.P.C. is made out. The learned Magistrate concerned has not committed any error in rejecting the application by holding that the Investigating Officer has collected sufficient material for constituting the offence u/s 436, I.P.C.

It is well-settled law that at stage of taking cognizance, framing of the charge or committal stage, the material collected by the Investigating Officer has to be considered for coming to the conclusion that prima facie offence is made outor not at this stage meticulous analysis of material collected by Investigating Officer not required.

There is no illegality in the impugned order ; therefore, the prayer for quashing the same is refused.

From the perusal of the record, it appears that due to non-appearance of the applicant N.B.W. has been issued vide order dated 4.8.2008, there is no illegality in issuing the N.B.W., therefore, the prayer for quashing the impugned order dated 4.8.2008 is also refused.

However, considering the facts and circumstances of the case, it is directed that the applicant shall appear before the Court concerned within 30 days from today before the Court concerned, till then N.B.W. issued against the applicant shall be kept in abeyance.

In case he applies for bail, the same shall be heard and disposed of on the same day by the courts below.

With the above direction this application is finally disposed of.