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Allahabad High Court · body

2009 DIGILAW 639 (ALL)

VINOD KUMAR SINGH v. STATE OF U P

2009-02-26

RAVINDRA SINGH

body2009
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. 2. This application has been filed with a prayer to quash the order dated 17. 6. 2008 passed by the learned Additional Chief Judicial Magistrate-1, Jaunpur in criminal misc. case No. 2069 of 2007 arising out of the charge-sheet submitted in case crime No. in 871 of 2006 under sections-436, 323, 504, 506, 427 IPC 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 appli cant. 3. 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 appli cant and others persons under sections 323, 504, IPC on 3. 1. 2007, thereafter, the appli cation under section 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 investi gated by the I. O. who submitted the charge sheet on 31. 5. 2007 under sections 323, 504, 506, 436 and 427, IPC 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 I. O. the offence under section 436, IPC is not made out, at the most offence under section 435 IPC is made out, which is triable by the Magis trate. 4. It is alleged that the Madha (Chhappar) of the first informant was set on the fire, which has been mentioned in the application under section 155 (2) Cr. 4. It is alleged that the Madha (Chhappar) of the first informant was set on the fire, which has been mentioned in the application under section 155 (2) Cr. P. C. that Madha was used for the purpose of human dwelling and keeping some prop erty, the property kept therein has also been burnt but during investigation none 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 I. O. has not dis closed the name of the items which burnt inside Madha (Chhappar) but for the pur pose of increasing the gravity of the of fence, charge-sheet has been submitted un der section 436, IPC which is triable by the learned Sessions Judge whereas the offence shall not travel beyond the purview of sec tion 435, IPC which is triable by the Magis trate. 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. 5. 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 under section 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 house hold articles kept therein have also been burnt but during investigation the I. O. 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 house hold articles even then the I. O. has submitted the charge-sheet under section 436 IPC, there is no evidence to show that any of fence under section 436 IPC is made out, at the most an offence under section 435 IPC is made out, which is triable by the Magis trate 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, be cause no offence under section 436 IPC is made out. The impugned order dated 17. 6. The impugned order dated 17. 6. 2008 is illegal, which is liable to be set aside. 6. 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 under section 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 house hold arti cles have also been burnt, which were kept therein, during investigation, it has been stated by O. P. No. 2 that the Madha (Chhappar) along with the article kept therein has been burnt, the witnesses inter rogated by the I. O. have also supported the prosecution version. One of the witness Rajendra Singh stated that in the said incident, the Madha alongwith the house hold 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 I. O. but during investigation it has also come in evidence that Magha (Chhappar) was used for keeping the house hold articles of O. P. No. 2 though it has been specifically mentioned by O. P. No. 2 in the application under section 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 along with madha in such a circumstances, the allegation are attracting the provisions of section 436 IPC which reads as under: "436 Mischief by fire or explosive substance with intent to destroy house etc - Whoever commits mischief by fire or any explosive substance, intend ing 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 im prisonment of either description for a term which may extend to ten years, and shall also be liable to fine. " 7. " 7. According to the above definition of section 436 IPC, whoever commits mis chief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the de struction of any building which is ordinar ily used as a place of worship or as a hu man dwelling or as a place for the custody of property, shall be punished, in the pres ent case according to the statement of the witness the burnt place was used for the custody of property, therefore, the offence under section 436 IPC is made out. The learned Magistrate concerned has not committed any error in rejecting the appli cation by holding that the I. O. has collected sufficient material for constituting the of fence under section 436 IPC. 8. It is well settled law that at stage of taking cognizance, framing of the charge or committal stage, the material collected by the I. O. has to be considered for coming to the conclusion that prime facie offence is made out or not at this stage meticulous analysis of material collected by I. O. not required. 9. There is no illegality in the im pugned order; therefore, the prayer for quashing the same is refused. 10. From the perusal of the record, it appears that due to non-appearance of the applicant N. B. W. has been issued vide or der 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. 11. 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 applica tion is finally disposed of. Application Disposed Of. .