1969 P Cr (PLP)

2. The complainant‑petitioner lodged a First Information Report with the police at Gopalpur Police Station, Mymensingh alleging that on 1‑5‑66 the accused opposite‑parties came to the Palan land of the complainant P. W. 1 in a body, armed with various weapons and asked him not to plough that land and as he did not obey, the accused persons injured the complainant, his wife, sister, father and others and then entered into his house and one of the accused namely, Thandu set fire to his south bhiti but where he used to keep rice, paddy, mustard etc. and as a result of that his hut, kitchen and hay‑stack were burnt into ashes. The local police investigated into the case and submitted a charge‑sheet against the accused persons under sections 148/326/307/436, P. P. C.

3. The case in usual course went to Mr. M. S. Islam, Magistrate 1st Class, Tangail for disposal. 15 witnesses were examined in the case during the enquiry under Chapter XVIII of the Criminal Procedure Code. After conclusion of examina tion of the witnesses, the learned Magistrate found a prima facie case under section 435, P. P. C. against accused Thandu, under section 325, P. P. C. against accused Falu and Hasen Ali, under section 324, P. P. C. against accused Fazil, Momruj, Yunus and Yakub Ali and under section 148, P. P. C. against all the accused persons. The offences being triable by a Magistrate, 1st Class, he framed charges against the respective accused persons under those sections and fixed a date for cross- examination of the P. Ws. and further examination of the witnesses, if any.

4. The complainant challenged the propriety of the order of the learned Magistrate and filed a petition under section 437, Cr. P. C. before the Sessions Judge, Mymensingh praying for further enquiry in the case and for directing the learned Magis trate to commit the accused to the Court of Session for trial, on the ground, inter alia that there being overwhelming evidence to make out a prima facie case under section 436, P. P. C. the learned Magistrate was wrong in not framing a charge under section 436, P. P. C. against accused Thandu and committing the accused persons to the Court of Session. It was further contended that accused Yakub Ali having caused hurt with Fala on the nose of P. W. Muhammad Ali, the learned Magistrate acted against the weight of evidence in not training l any charge against him on that score. The learned Sessions Judge considering the evidence accepted the petitioner's second contention but rejected his prayer for further enquiry and direction to commit the accused to the Court of Session for trial after framing a charge against accused Thandu under section 436, P. P. C. The complainant petitioner being aggrieved by the order of learned Sessions Judge, moved this Court under section 439, Cr. P. C. and obtained the present Rule.

5. Mr. Abu Hossain Sarkar, the learned Advocate appearing for the petitioner has raised only one point before me for consideration. He has contended that the evidence on record being uniform that the but in question was a dwelling but meant for keeping paddy, rice, mustard etc. the Courts below erred in law in not framing a charge under section 436, P. P. C. and not committing the accused to the Court of Session for trial.

6. It appears from the judgments that both the learned Magistrate and the Sessions Judge declined to frame charge against the accused under section 436, P. P. C., mainly on the ground that the informant and some of the P. Ws. did not specifically describe the but in question as a dwelling hat. In the First Information Report, the but was described as a south bhiti but meant for keeping the property; P. Ws. 1, 2, 3, 4, 6 and 10 have stated that the but in question was a dwelling but and that the complainant used to keep his paddy, rice, mustard etc. there. In this connection, the defence suggestion was that the burnt but in question was being used for keeping the goats of the complainant, P. W.

1. Section 436 of the Penal Code runs as follows :‑ "Whoever commits mischief by fire or any explosive sub stance, 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 descrip tion for a term which may extend to ten years, and shall also be liable to fine."

7. It is apparent from the above provisions of law that the mischief by fire to any building which is used as a place of worship or as a human dwelling or as a place for the custody of property comes within the ambit of this section. The section contemplates three classes of buildings, namely, the building used as a place of worships, the building used as a human dwelling and the building used as a place for the custody of property. The destruction of any one of the three classes mentioned in the section would complete the offence. The building here intended must not only be a building in the proper sense of the term but a building ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property. The but used for the custody of property shall, therefore be a building within the meaning of the section and any body causing destruction of the same by fire shall be liable under section 436, P. P. C.

8. In the instant case, the hut in question being a place for the custody of property and the evidence being uniform that the complainant used to keep his paddy, rice, mustard etc. in that hat, the destruction of the same by fire brings the accused within the mischief of section 436, P. P. C. In my opinion, the offence comes clearly under section 436 and not under section 435 of the Penal Code. In the facts and circumstances of the case, the proper order by the learned Sessions Judge ought to have been to direct the learned Magistrate to frame a charge under section 436, P. P. C. and commit the accused to the Court of Sessions.

9. A prima facie case under section 436, P. P. C. has also been made out on merits. The learned Magistrate has erroneously framed charge against the accused under section 435, P. P. C. The learned Sessions Judge has affirmed this part of the order against the weight of evidence on record.

10. For the reason, stated above, the order complained of is set aside and the case is remanded back to the learned Sessions Judge with a direction to proceed with the matter in accordance with Law in the light of the observations made above. The Rule is accordingly made absolute. Rule made absolute.