RAVINDRA SINGH, J. - (1.) 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. 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.
(3.) 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.;