Reserved On 03.08.202 vs Unknown
2021 Latest Caselaw 818 j&K

                                                                      Sr. No. 215

      HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                       AT JAMMU



                                                  CRR 53/2015

                                                  Reserved on 03.08.2021
                                                  Pronounced on 05 .08.2021.
State th. SHO P/S Mandi, Poonch
                                                                 ..... petitioner (s)

                                Through :- Mr. Adarsh Bhagat G.A.

                          V/s

                                                               .....Respondent(s)
Sher Baz
                                Through :- Mr. A.K.Shan Advocate.

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE


                                JUDGEMENT

1 This criminal revision petition by the State is directed against the

order dated 04.02.2015 passed by the learned Special (Sessions Judge) Poonch

['trial Court'] in case titled 'State of J&K vs Sher Baz' by virtue of which the

trial Court has discharged the respondent of the offence punishable under

Section 436 RPC.

2 The prosecution case, in brief, is that the complainant Shah Mohd

lodged a written report with Police Station, Mandi on 08.01.2015 with the

allegations made therein that during the night intervening 7/8th January, 2015 at

about 2 am, two shops were set on fire by the respondent-accused when he was

sleeping in his house and as a result whereof, loss to the tune of Rs.2.00 lac had

been caused. It was claimed that the said shops which were gutted in fire were

constructed by the complainant Shah Mohd on the land belonging to the

respondent with the arrangement that one of these two shops would be retained 2 CRR53/2015

by the complainant and the other would be handed over to the respondents. On

the basis of this written application, FIR No. 03/2015 for offence under Section

436 RPC was registered in Police Station, Mandi and the investigation set in

motion.

3 The Investigating Officer, after completing requisite formalities

including recording of statements of witnesses under Section 161 Cr.P.C etc.,

found the offence under Section 436 RPC established against the respondents,

and, accordingly, presented the final report/challan before the trial Court.

4 The matter came up for consideration before the trial Court for

framing of charges on 04.02.2015 when the trial Court, after perusing the final

report and going through the evidence collected during the investigation,

formulated the opinion that, prima facie, no offence was made out against the

respondent-accused. The trial Court, in the exercise of its powers under Section

268 Cr.P.C discharged the respondent. The respondents has been discharged by

the trial Court primarily on the ground that none of the witnesses, whose

statements were recorded by the Investigating Officer under Section 161

Cr.P.C had stated anything against the respondents which would connect him

with the commission of offence under Section 436 RPC.

5 Feeling aggrieved and dissatisfied with the order impugned, the

State is before me in this revision petition seeking indulgence of this Court to

direct the trial Court to frame the charge under Section 436 RPC against the

respondent in view of sufficient evidence in this regard collected by the

Investigating Officer during the investigation.

6 The order impugned has been assailed primarily on the following

grounds:

                                        3                   CRR53/2015


             (i)    That the learned trial Court has not properly appreciated the

law and facts of the case and has discharged the respondent despite there being sufficient material on record; and

(ii) That the trial Court has ignored the oral and documentary evidence collected by the Investigating Officer which, if appreciated in proper perspective, is sufficient to connect the respondent with the commission of offence punishable under Section 436 RPC.

7 Having heard learned counsel for the parties and perused the

record, I am of the considered view that there is sufficient evidence on record

to frame the charge under Section 436 RPC against the respondent and the

prima facie finding of fact recorded by the trial Court that none of the

witnesses in their statements recorded under Section 161 Cr.PC have deposed

anything against the respondent, is factually incorrect and contrary to record.

8 The Hon'ble Supreme Court, in the case of Sajjan Kumar vs.

CBI, (2010) 9 SCC 368 has, in paragraph 21 of the judgment, laid down the

broad principles to be kept in mind while considering the question of framing

of charges. For facility of reference, paragraph 21 of the judgment supra is

reproduced hereunder:

"21.On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:

(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.

ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly 4 CRR53/2015

explained, the Court will be fully justified in framing a charge and proceeding with the trial.

iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal".

                                        5                   CRR53/2015


9            In the light of aforesaid principles when the statements of the eye

witnesses examined by the Investigating Officer under Section 161 Cr.P.C are

seen, it is crystal clear that the eye witnesses have very clearly stated in their

testimonies that it was the respondent, who torched the shops of the

complainant and caused extensive damage to them as well as goods stored

therein. The witnesses in their statements have clearly stated that the shops

were set ablaze by the respondent, who was seen holding a 'mashal' in his

hand. Not only the oral testimonies of the witnesses, but the circumstantial

evidence like the presence of the respondent with 'mashal' in his hand near the

place of occurrence does make out a case of commission of offence punishable

under Section 436 RPC.

10 Section 425 RPC defines the offence of mischief, whereas

mischief by fire or explosive substance with criminal intention to destroy the

house etc., is punishable under Section 436 RPC. For facility of reference,

Sections 425 and 436 RPC are also reproduced hereunder:

"425. Mischief- Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief".

"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 6 CRR53/2015

either description for a term which may extend to ten years, and shall also be liable to fine.

11 From a bare reading of the statements of the witnesses recorded

during the investigation which were part of the final report submitted to the

trial Court, it is abundantly established during investigation that there was

some dispute between the complainant Shah Mohd and the respondent with

regard to two shops allegedly constructed by the complainant on the land of the

respondent with the understanding that one shop will remain with the

respondent and one shop with the complainant.

12 It has come in the evidence collected during the investigation that

the dispute with regard to the aforesaid shops is pending before a Civil Court.

It is, thus, rightly concluded by the Investigating Officer that due to dispute

with regard to the shops aforesaid, the respondent set both the shops ablaze and

caused extensive loss to the tune of Rs.2.00 lac to the complainant. The

statement of complainant Shah Mohd recorded under Section 161 CrPC on

08.01.2015 and the statement of Bashir Ahmed recorded under Section on

09.01.2015 clearly implicate the respondent with the commission of offence

punishable under Section 436 RPC. It is surprising that the trial Court has

ignored their statements and has recorded in the order impugned that none of

the witnesses, whose statements were recorded during the investigation, have

said anything against the respondent.

13 Rushing by the trial Court to the conclusion that there was no

evidence against the respondent which would connect him with the

commission of offence punishable under Section 436 RPC has resulted in

serious miscarriage of justice. Had the trial Court bothered to read the 7 CRR53/2015

statements of the witnesses, it would not have taken the view which it has

taken and would not have erroneously discharged the respondent.

14 An argument was raised by Mr. Shan, learned counsel for the

respondent that Section 436 RPC would be attracted only if mischief by fire is

committed to cause destruction of a dwelling house and, therefore, mischief

vis a vis the destruction of shops may not fall within the purview of section 436

RPC.

15 I have given my anxious consideration to the argument of learned

counsel for the respondent but find little substance in it. The language of

Section 436 RPC is very clear and unequivocal which provides that whosoever

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 home dwelling

or as a place for the custody of the property, shall be punished under the said

Section with imprisonment for life or with imprisonment by either description

for a term which may extend to ten years and shall also be liable to fine.

16 From a plain reading of Section 436 RPC, it is clear that the

mischief, if committed in reference to a place of worship or a place of home

dwelling or a place for the custody of the property, would fall within the

purview of Section 436 RPC. Indisputably, the aforesaid shops, where the

complainant had stored his goods, were meant for custody of the property and,

therefore, fall within the purview of Section 436 RPC

18 Viewed from any angle, the impugned order passed by the trial

Court discharging the respondent from the offence under Section 436 RPC is

not sustainable in law and deserves to be quashed and set aside. Ordered 8 CRR53/2015

accordingly. The case is remanded to the trial Court to reconsider the question

of framing of charge against the respondent again, in light of the observations

made hereinabove and the evidence on record.

Allowed in the aforesaid terms.

The trial Court record be sent down along with copy of this

judgment.

(SANJEEV KUMAR) JUDGE Jammu 05 .08.2021 Sanjeev

Whether the order is speaking: Yes

Whether the order is reportable: Yes