Orissa High Court

Bikram Pradhan vs State Of Orissa And Another on 10 November, 2022

         IN THE HIGH COURT OF ORISSA AT CUTTACK

                       CRLMC NO.533 of 2016

  (In the matter of application under Section 482 of the Criminal
  Procedure Code, 1973.).

  Bikram Pradhan                              ....            Petitioner

                                -versus-

  State of Orissa and another                 ....     Opposite Parties



  For Petitioner                :          Mr. P.S. Nayak , Advocate



  For Opposite Parties          :           Mr. M. Mishra, ASC
                                                       [O.P. No.1]
                                            Mr. S. Udgata, Advocate
                                                       [O.P. No.2]

      CORAM:
           JUSTICE G. SATAPATHY

               DATE OF HEARING :31.10.2022
               DATE OF JUDGMENT:10.11.2022


G. Satapathy, J.

1. Aggrieved by the order passed on 30.11.2015 in C.T. Case

No.186 of 2011 by which the learned S.D.J.M., Rairakhol took

cognizance of offence U/S.436 of IPC, the petitioner has invoked

the jurisdiction of this Court U/S.482 of Cr.P.C. to quash the

aforesaid order taking cognizance of offence U/S. 436 of the I.P.C.

2. The relevant facts in precise are that on 21.03.2011 at

about 9 P.M. in the night, the house of one Rajkishore Pradhan of

village Uparamunda was found burning and due to prior landed

dispute with his four brothers, Rajkishore Pradhan suspected the

involvement of his four brothers for setting his house on fire and

accordingly, he lodged an FIR before the IIC, Kisinda P.S. against

his four brothers namely, Gobardhan Pradhan, Ajit Pradhan,

Ashok Pradhan and Bikram Pradhan, which was registered vide

Kisinda P.S. Case No.03 of 2011 with commencement of

investigation by the S.I. of Police, Sarbeswar Samantaray who

after conducting the investigation submitted final report as no clue.

Pursuant to such final report, the learned S.D.J.M., Rairakhol

issued notice to the informant who filed a protest petition in the

shape of complaint in C.T. Case No.186 of 2011 in which the

initial statement of the complainant U/S.200 of Cr.P.C. and

substance of inquiry of witnesses U/S.202 of Cr.P.C. were

recorded. In the ultimate appraisal of the complaint together with

initial statement of the complainant and substance of inquiry of

witnesses U/S.202 of Cr.P.C. and finding a prima facie case,

learned S.D.J.M., Rairakhol by the impugned order took

cognizance of offence U/S.436 of IPC and issued process against

the petitioner only. Hence, this CRLMC by the petitioner.

3. In the course of hearing the CRLMC, learned counsel for

the petitioner by taking through the averments of FIR, complaint

and the initial statement of the complainant, submits that the

petitioner has never set the house of the informant on fire and the

only inference against the petitioner for quizzing others by saying

as to "why they were dousing the fire, when the informant has

himself set his house on fire", is forthcoming and, therefore, no

offence U/S.436 of IPC is attracted against the petitioner. It is

accordingly, prayed to quash the impugned order taking

cognizance of offence U/S. 436 of I.P.C. and issuing of process

against the petitioner.

4. On the contrary, learned counsel appearing for the opposite

party no.2 submits that although it is not found from the record as

to who had set the house of the informant on fire but the statement

of the complainant and other witnesses as well as the FIR would

go to show that the petitioner was preventing others from dousing

the fire set to the house of informant which by itself constitute an

offence U/S.436 of IPC and therefore, the present application

U/S.482 of Cr.P.C. is not maintainable and liable to be dismissed

and the learned Court by the impugned order having taken

cognizance of offence on proper consideration of materials on

record with sound discretion of judicial mind needs no

interference by this Court. It is accordingly prayed to dismiss the

CRLMC.

5. On bestowing a careful consideration to the rival

submissions, the questions crop up for consideration in the

CRLMC are whether the initial statement of complainant together

with the statement of witnesses on given facts of the complaint

disclose commission of offence U/S.436 of IPC or any other

offence and there is sufficient ground for proceeding against the

petitioner. In other words, whether there is prima facie case

against the petitioner for commission of offence U/S.436 of IPC.

Admittedly, there is no direct allegation against the petitioner

either in the FIR or in the complaint to evidence that he set fire to

the dwelling house of the informant. The uncontroverted facts as

per the FIR disclose that the petitioner was found asking others in

presence of Antaryami Pradhan and Satrughan Roul as to why

they were dousing the fire, when his own brother (informant) has

set his own house on fire, but in the complaint, it is stated that the

petitioner had prevented others from extinguishing the fire in

presence of Antaryami Pradhan and Satrughan Roul who have

been examined as witnesses for the complainant in enquiry

U/S.202 of Cr.P.C. and in such enquiry, Satrughan Roul has stated

that the petitioner-Bikram Pradhan was saying as to why he was

extinguishing the fire and he cannot say as to who had set fire to

the house of the complainant. The aforesaid statement was also

repeated by witness Antaryami Pradhan exactly in his enquiry

U/S.202 of Cr.P.C. The undisputed facts as emerging from the

materials on record are that neither anybody had seen the

petitioner setting fire to the house of the informant-complainant

nor was it alleged against him for setting fire to the house of the

informant and the only allegation forthcoming against him is that

he was saying to others as to why they were extinguishing the fire.

6. Considering the above being admitted facts, let us examine

as to whether there is prima facie case against the petitioner for

commission of offence U/S.436 of IPC or for any other offences.

For better appreciation, this Court considers it beneficial to refer

Section 436 of IPC which is couched in the following words:

"436 of the I.P.C.:- 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."

A cursory glance of above definition of Section 436 of the

IPC would go to indicate that the offence U/S.436 of IPC has been

described by four important factors such as mischief, fire or

explosive substance, knowledge and mens rea (intention) to

destroy the house. A further analysis of offence U/S.436 of IPC,

the following ingredients are required to complete the offence:

"(i) mischief must have been committed by someone,

(ii) such mischief must have been done by fire or explosive substance and

(iii) mischief must be preceded by mens rea or knowledge to destroy the house."

7. What constitute the "mischief" has been explained U/S.425

of IPC which states as follows:-

"425 Mischief:- Whoever with intend 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".

Explanation 1:- It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or

damage to any person by injuring any property, whether it belongs to that person or not.

Explanation 2.- Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly."

8. What constitutes the offence of mischief has been defined

in Section 425 of IPC which is couched in terms of mental and

physical act. The mental element is nothing but the mens rea or

intention which is again either expressed or implied to cause

wrongful loss or damage to the property/person. The physical

element is an act of destruction and/or injurious change to the

property, while the mental element is the same in all kinds of

mischief. Mischief involves a mental/physical act accompanied

with a destructive animus, and such destruction is with the object

of causing wrongful loss or damage. On the other hand, negligence

does not necessarily amount to mischief, but negligence with mens

rea to cause wrongful loss or damage would amount to mischief in

certain circumstances. It is, therefore, very clear that the offence

U/S.436 of IPC is referable to mischief by fire/explosive substance

accompanied with mens rea or knowledge, besides causing

destruction of any building ordinarily used as a place of worship

or human dwelling or place of custody.

9. Reverting back to examine the pregnability of the

impugned order, there appears no doubt that the learned Court by

the impugned order has taken cognizance of offence U/S.436 of

IPC on a conspectus of materials on record consisting of the

protest petition, initial statement, and statement of witnesses

U/S.202 of Cr.P.C. Admittedly the complainant has filed protest

petition pursuant to the final report "no clue" as submitted by the

I.O. after conducting investigation in the FIR lodged in Kisinda

P.S. Case No.03 of 2011. It is also not in dispute that the

complainant has lodged the FIR and complaint against his four

brothers but the learned S.D.J.M., Rairakhol by the impugned

order has found prima facie case only against the present petitioner

and accordingly, issued process against him. A bare perusal of

complaint by itself discloses the only incriminating material

against the petitioner that while dwelling house of the complainant

was burning, the petitioner had prevented others in presence of

witnesses Antaryami Pradhan and Satrughan Roul from dousing

the fire set to the house of the complainant and the complainant

had suspected that the petitioner and his other three brothers would

have set fire to his dwelling house. Admittedly there is neither any

averment in the complaint nor is there any material in the initial

statement of the complainant as also in the statement of witnesses

U/S.202 of Cr.P.C. as to who had set the house on fire. The case of

the complainant is that at the relevant time, his house was on fire,

but was the house set on fire by somebody? Or was the same

caught with fire accidentally, has not been clarified either in the

complaint or in the initial statement or in the enquiry U/S. 202 of

Cr.P.C. The only assertion made in the complaint is that the

complainant suspects the petitioner and his other three brothers to

have set his dwelling house on fire. It is claimed in the complaint

that witnesses namely Antaryami Pradhan and Satrughan Roul

were found to have seen the petitioner preventing others from

extinguishing the fire but they have stated in their enquiry U/S.

202 of Cr.P.C. that Bikram Pradhan was saying why they are

extinguishing the fire and both of them have further stated in such

enquiry that they cannot say as to who set the house on fire. The

son of the complainant and the complainant have also not stated in

the proceeding as to who set the house on fire.

10. In order to attract the offence U/S.436 of IPC, at the cost of

repetition, it is stated that there must be a mischief by fire and such

mischief must have been committed by someone. Neither the

complainant nor any of the witnesses have ever stated as to who

set the said dwelling house on fire, but the only allegation made

against the petitioner is that he was preventing others from

dousing the fire. There cannot be any semblance of doubt that one

can prevent others by his own act which can either be verbal or

physical but in this case the entire materials on record do not

disclose any physical act of the petitioner preventing others. It is

albeit stated in the complaint that the petitioner was preventing

others in presence of Antaryami Pradhan and Satrughan Roul who

have stated in their enquiry that the petitioner was saying why you

are extinguishing the fire, but such facts even if accepted being a

casual remark does not constitute the act of preventing others.

Moreover, the son of the complainant has also been examined in

this case but his statement was to the effect that the petitioner said

that it was good that their house has been set on fire.

11. A careful consideration of the uncontroverted allegations

made in the complaint and appearing in the evidence in the form

of initial statement of complainant and enquiry of the witnesses

U/S.202 of Cr.P.C. in support of the same do not constitute the

commission of any offence and make out a case against the

accused-petitioner inasmuch as the ingredients of offence U/S.436

of IPC which comprises (i) mischief by fire or explosive

substance, (ii) commission of such mischief by someone and (iii)

lastly, destruction of any building to be a place of worship or

human dwelling or place of custody are not conjointly established

fully against the petitioner in view of the fact that the allegation of

setting the dwelling house on fire has neither been alleged against

the petitioner nor was it established against him and the mere

allegation of preventing others from dousing the fire although

stated in complaint but was never stated by any of the witnesses in

the Court, rather there appears some casual remarks stated to be

made by the petitioner to others as to "why they are extinguishing

the fire" only appears in the statement of witnesses Antaryami

Pradhan and Satrughan Roul which ipso facto does not attract the

offence either U/S.425 of IPC or 436 of IPC. What are the

circumstances in which this Court can exercise its inherent

jurisdiction U/S.482 or Cr.P.C. has been laid down by the apex

Court by way of illustration in the most and oft quoted decision of

our Apex Court in State of Haryana v. Bhajan Lal; 1992 Supp

(1) SCC 335 wherein at paragraph 102(3) the Apex Court has laid

down one of the grounds for exercising power U/S.482 of Cr.P.C.

as under:-

"where the uncontroverted allegations made in the FIR or complaint and the evidence collected in

support of the same do not disclose the commission of any offence and make out a case against the accused."

When the case at hand is scrutinized on the above legal

principle laid down by the Apex Court, one thing emerges that the

complainant-opposite party no.2 herein could not make out a case

against the petitioner for commission of offence U/S.436 of IPC

and a close scrutiny of materials in entirety do not disclose the

basic ingredients of offence U/S.436 of IPC against the petitioner.

12. In view of the discussion of facts and law made

hereinabove and taking into consideration the fact that the material

allegations on record even if taken at their face value and accepted

in entirety do not prima facie constitute/disclose any offence or

make out a case against the petitioner but the learned S.D.J.M.,

Rairakhol has fallen in error taking cognizance of offence and