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2007 DIGILAW 1087 (PAT)

Niraj Singh v. State Of Bihar

2007-07-09

ABHIJIT SINHA

body2007
Judgment 1. All the eleven petitioners herein who figure as accused in Complaint (Protest) Case No. 293 of 1999 are aggrieved by order dated 6.5.2005 passed by the learned Sessions Judge, Gaya, in Criminal Revision No. 161 of 2004 whereby while allowing the Revision preferred by the Com-plainant-O.R No. 2 and setting aside the order dated 11.11.2004 of the learned Judicial Magistrate has directed for commitment of the case to the Court of Sessions as in his opinion a distinct offence under Sec. 436 I.PC. and not Sec. 435 I.PC. was made out from the evidence and allegations. 2. Amas P.S. Case No. 100 of 1999 was registered under Sec. 435/34 l.P.C. against the petitioners and another (since deceased) on the basis of a written report submitted by one Dular Chand Yadav who alleged inter alia that in between the night of 22/23.11.1999 at about 4.00 A.M. all the F.I.R. named accused had set fire and burnt the ten thousand bundles of paddy kept in the shape of Ganj (dump) in his Khalihan located near the Devisthan east of the village. The police after due investigation submitted a final form on 31.12.1999 stating that the case was not true and the final form was accepted by the learned Judicial Magistrate. However, prior thereto, on 2.12.1999 the said informant filed a protest petition (Complaint Case No. 293/99) making out another case completely different from the one spelt out in the written report and also cast aspertions on the investigating police. It appears that the learned Judicial Magistrate after holding an enquiry under Sec. 202 Cr.P.C. took cognizance against the accused persons under Sections 147, 148 and 435 l.P.C. and summoned them and on appearance of the accused persons they were enlarged on bail. 3. It appears that the complainant-O.P. No. 2 dissatisfied with the provisions whereunder cognizance had been taken by the learned Judicial Magistrate filed a petition on 11.12.2003 praying therein that as from the allegations a clear case under Sec. 436 l.P.C. had been made out against the accused persons and the said offence was triable by the Court of Sessions the same should be committed to the Court of Sessions for trial. 4. 4. The prayer did not find favour with the learned Magistrate who by a reasoned order dated 11.11.2004 dismissed the petition holding that a Kurha or Ganj does not come within the purview of the word "Building" as envisaged under Sec. 436 l.P.C. as it was not a "dwelling house". The pernicious complainant O.P. No. 2 took up cudgels and moved the Sessions Court in revision against the order of the learned Magistrate and the learned Sessions Judge by the impugned order dated 6.5.2005 allowed the revision holding that a clear case under Sec. 436 I.P.C. had been made out since Kurha wherein the paddy crops were kept and had been set on fire fell within the ambit of the expression "human dwelling" for the purpose of Sec. 436 I.P.C. and accordingly directed the Magistrate for committing the case to the Court of Session. 5. The main contention of the learned counsel tor the petitioners is that the learned Sessions Judge had misinterpreted the meaning of word Kurha as used in the protest petition by holding that Kurha was a "dwelling house". On the other hand the learned Magistrate after examining the statement of the witnesses that thousands of bundles of paddy crops were kept in the Kurha and that as a ganj (dump) of paddy crops had been stored in the Khalihan the Kurha was made as a temporary structure to keep watch over the ganj (dump) of paddy which could not come under the purview of the expression "dwelling house" as envisaged under Sec. 436 of I.P.C. The learned counsel also pointed out that the finding recorded by the learned Sessions Judge was an error of record inasmuch as the witnesses have stated that there was a ganj of paddy crops which was situated separately from the Kurha and such error could not be sustained in law. 6. The learned counsel also sought to point out with reference to the order of the learned Magistrate that he had found that Kurha made in the Khalihan is some 300 ft. from the dwelling house of the complainant and this Kurha was made of straw without any fencing of brick and door and was made for the limited purpose of supervising the ganj of paddy crops. 7. from the dwelling house of the complainant and this Kurha was made of straw without any fencing of brick and door and was made for the limited purpose of supervising the ganj of paddy crops. 7. On perusal of the impugned order of the Sessions Judge it appears that he relied on the evidence of the witnesses who deposed "that about thousand bundles of paddy crops (ganj) were kept in Kurha wherein Birju Yadav used to sleep and on the fateful night also he was sleeping there. So, it is manifest that there was a passage of egress and ingress in the said Kurha bounded by straw and wooden bars. It is obviously clear that it was place for custody of paddy of bundles". 8. The short question which falls for consideration is as to whether the impugned order passed by the learned Sessions Judge by holding the case to have come within the ambit of Sec. 436 I.RC. suffers from any incorrectness, illegality or impropriety warranting it is being quashed. 9. Sec. 436 I.P.C. contemplates the offence of mischief by fire with intention to cause destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place of custody of property. 10. The expression building came for interpretation in Smt. Perbata V/s. The State, 1990 0 CrLJ 1665 wherein it was held that an ordinarily thatched shed resting on bamboo or bricks pillar having no door cannot be treated as "building" within the meaning of the term used under Sec. 436 I.RC. In the case of State of Rajasthan V/s. Bhirajram, 1998 0 CrLJ 3791 the Rajasthan High Court held that a thatched sheltering place meant for temporary rest to keep watch over the harvested crops stacked in the adjacent khalihan with no other goods or crops or any valuable being kept there would not be covered by the definition of "building" within the ambit of Sec. 436 I.P.C. Then again in Bherulal V/s. State of Rajasthan, 1999 0 CrLJ 4257 it was held that a Cabin which is removable might be made of wood but will not be covered under the meaning "building" which necessarily means the structure or any erection which is of common nature and is erected on the earth and some portion of it is embeded in earth. 11. 11. To my mind the learned Sessions Judge has misapplied himself in holding a Kurha to be a building within the ambit of Sec. 436 I.P.C. The learned Sessions Judge was remiss of the fact that what had been burnt was the ganj, i.e. the bundle of paddy crops kept in the khalihan and not the kurha. 12. Due regard being had to the facts and circumstances of the case the impugned order passed by the learned Sessions Judge appears to be wholly misconceived and is, accordingly, quashed and the order of the learned Judicial Magistrate dated 11.11.2004 is restored. 13. The application is, accordingly, allowed.