Judgment Ram Naresh Thakur, J. Though this application was ordered to be heard along with Criminal Miscellaneous No. 3037 of 1980, but, for the sake of convenience and with the Consent of the parties, all the three applications have been heard separately and they will be governed by separate orders. 2. This application has been directed rot quashing the entire proceeding for the prosecution of the petitioners in Complaint case no. 136 of 1980 including the order dated 28th July, 1980, passed by the Sub-divisional Judicial Magistrate, Patna City, by which cognizance has been taken against these petitioners for offences under sections 148 and 436 of the Indian Penal Code, (shortly referred to as the Code hereinafter). 3. On 12th June, 1980, the opposite party, Shyam Deo Shukla, loged a case at Fatwah police station which was registered as Fatwah P.S. case No. 23 dated 12th June, 1980 against these petitioners with the allegation that on 12th June, 1980 at about IAM in the night these petitioners along with others, armed with country made gun and other weapons came to his darwaja and started knocking the door. The family members of the opposite party woke up, went on the roof of the house and started shouting 'Char Chor'. In the meantime, petitioner Radhey Singh is alleged to have fired his gun twice. On hulla the villagers assembled and identified these petitioners in the flash or their torches. They also asked the petitioners not to do such highhandedness while running away petitioner Rameshwar Singh ordered to set fire on which petitioner Umesh Singh set fire to the Dalan of the opposite party with the result that the roof of his Dalan was burnt and thereby he sustained a loss of Rs.100/- 4. After investigation final report a copy of which is Annexure 1, was submitted in the case showing the case as false and this final report was accepted by the Sub-divisional Judicial Magistrate on 5th July, 1980. A separate report for taking action under sections 182 and 211 of the Code against the opposite party was also submitted by the investigating officer. On 25th July, 1980, the Sub-divisional Judicial Magistrate issued show cause notice to the opposite party, a copy of which is Annexure 2', as to why he should not be prosecuted for offences under sections 182 and 211 of the Code, 5. On 25th July, 1980, the Sub-divisional Judicial Magistrate issued show cause notice to the opposite party, a copy of which is Annexure 2', as to why he should not be prosecuted for offences under sections 182 and 211 of the Code, 5. On 5th July, 1980, the opposite party filed a fresh petition of complaint in respect of the same allegation for which he had lodged the first information report. He was examined on solemn affirmation on 8th July, 1980, and the Sub-divisional Judicial Magistrate concerned kept the case in his own file for enquiry under section 207 of the Code of Criminal Procedure (hereinafter referred to as Cr. P.C.) Nine witnesses were examined on behalf of the complainant-opposite party in course of the enquiry. After considering the entire evidence including the petition of complaint, statement on solemn affirmation and the statement of the witnesses, cognizance under sections 148 and 436 of the Code was taken against the petitioners and processes were directed to be issued against them. Against this order this application has been filed. 6. Learned counsel appearing On behalf of the petitioners has challenged the impugned order on the ground that even if the facts stated by the prosecution are admitted to be true, no offence under section 436 of the Code is made out against these petitioners. It has also been submitted that a compromise petition, duly signed by the opposite party and the petitioners, bas been filed in the court. Learned counsel appearing on behalf of the opposite party has simply stated that there has been compromise between the parties outside the court and he has nothing further to say. 7. To appreciate the submissions made at the Bar it will be convenient to reproduce section 436 of the Code which reads as follows:- "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". From a mere perusal of the section it is quite clear that when any building is set on fire, to bring the mischief within the purview of section 436, it has to be proved that the building in question is ordinarily used as a place of worship or as a human dwelling or as a place for custody of property. If any of the three ingredients is not fulfilled, the mischief will come within the purview of section 436 of the Code; that is to say, the prosecution has to show that the building, which has been set of fire, is ordinarily used as a human dwelling or a place of worship or for the custody of property. Let us examine the present case in that light. 8. In the present case, according to the petition of complaint, it has been stated; In the solemn affirmation it has been simply stated that Umesh fled away after setting fire due to which he sustained a loss of Rs.100/-. Out of nine witnesses examined in course of enquiry, Some of the witnesses have said that the fire was set to his house, two of the witnesses have said that the fire was set to his Baithka, one witness has stated that the fire was set to his Dalan and three witnesses have stated that fire was set to his Bangla but none of them has said that either the Baithka or Dalan or Bangla or the house was ordinarily being used as dwelling place. Until and unless there is evidence to show that the house or building which was set on fire was being used as a dwelling place or place for worship or for custody of property, the mischief will not come within the purview of section 436 of the Code. 9. In the present case, as stated above, no witness has stated that the said Dalan or Baithka Or house or Bangla was used as a place of worship or as a dwelling house or as a place for custody of property. It will not be out of place to mention here that Annexure 1 of the application is a copy of the final report submitted under section 173 Cr. P. C in the police case lodged by the opposite party. It will not be out of place to mention here that Annexure 1 of the application is a copy of the final report submitted under section 173 Cr. P. C in the police case lodged by the opposite party. In page 3 of that Annexure 1 it is mentioned that the place of occurrence was a neglected Baithka with tiled roof. In absence of any evidence to show that the building which was set on fire was being used as a dwelling house or as a place for worship or a place for custody of property, no offence under section 436 of the Penal Code is made out. At best, on the admitted facts, an offence under section 435 of the Code can be made out. 10. In view of the aforesaid evidence, the order taking cognizance under section 436 of the Code cannot be maintained. Accordingly, the order taking cognizance under section 436 of the Code is set aside and the case is sent back to the Court concerned with the direction that after perusing the entire evidence in the aforesaid light if the court comes to the conclusion that cognizance should be taken under section 435 of the Code, it may do so in accordance with law. 11. So far the petition of compromise is concerned, the parties are directed to move the application before the Court below, if they so choose and we have not applied ourselves in that direction. 12. This application is accordingly, disposed of in the light of the observations made above. Application allowed.