Ravindra Singh - (1.) HEARD Sri Anil Kumar Singh, learned counsel for the applicant and the 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-I, Jaunpur in Criminal Misc. Case No. 2069 of 2007 arising out of the charge-sheet submitted in case Crime No. Nil of 2007 (N.C.R. No. 1 of 2007) 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.-I, 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 other persons under Sections 323 and 504, I.P.C. on 3.1.2007, thereafter, the application 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 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 under Section 436, I.P.C. is not made out, at the most offence under Section 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 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 property, 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 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 under Section 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.
(3.) 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) of 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 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 house hold articles even then the Investigating Officer has submitted the charge-sheet under Section 436, I.P.C., there is no evidence to show that any offence under Section 436, I.P.C. is made out, at the most an offence under Section 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 under Section 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 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 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 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 Investigating Officer but during investigation it has also come in evidence that madha (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 alongwith madha in such a circumstances, the allegations are attracting the provisions of Section 436, I.P.C. 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, 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." ;