Gauhati High Court
Pankaj Borah & 5 Ors vs The State Of Assam on 10 September, 2013
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)
CRIMINAL REVISION PETITION NO. 307 OF 2013
1) Sri Pankaj Borah,
S/o Late Lakhiram Borah,
Vill. Mahekhusha,
PO- Kashamari, PS-Sadar,
Dist. Nagaon, Assam
2) Sri Bulbuli Bordoloi,
S/o Sri Luken Bordoloi,
Vill. Mahekhusha,
PO- Kashamari, PS-Sadar,
Dist. Nagaon, Assam
3) Sri Mintu Das,
S/o Sri Dimbeswar Das,
Vill. Bahuabheti,
PO- Kashamari, PS-Sadar,
Dist. Nagaon, Assam
4) Sri Pranab Bordoloi,
S/o Sri Krishna Bordoloi,
Vill. Brahmungaon,
PO- Kashamari, PS-Sadar,
Dist. Nagaon, Assam
5) Sri Mintu Nath,
S/o Sri Mahakal Nath,
PO- Kashamari, PS-Sadar,
Dist. Nagaon, Assam
6) Sri Luit Ch. Nath,
S/o Sri Hemeswar Nath,
Vill. Bahuabheti,
PO- Kashamari, PS-Sadar,
Dist. Nagaon, Assam
.......Petitioners
-vs-
State of Assam
..........Respondent.
PRESENT HON'BLE MR. JUSTICE N. CHAUDHURY For the petitioners : Mr. T.J. Mahanta, Mr. PP Dutta, Mr. A. Baruah, Advocates For the respondent : Mr. B.B. Gogoi, Addl. PP, Assam Date of hearing : ..........................
Date of judgment : 10.09.2013
2
JUDGMENT AND ORDER (CAV)
This is an application under Section 482 of CrPC read with Sections 401 and 397 of CrPC praying for quashing of the charge framed under Section 436 IPC against the present petitioners.
2) There was an FIR filed by the Secretary of the Kachamari Gaon Panchayat on 28/09/2010, before the Office-in- Charge of Haibargaon Town Out-Post alleging that some persons created unruly situation and ransacked the articles of the office of the Gaon Panchayat and set it on fire claiming that list of beneficiaries prepared under the Chief Minister's Anna Suraksha Achani, was defective. The Superintendent of Police, Nagaon, himself had to go to the spot to bring the situation under control. Accordingly, necessary action by way of investigation in the matter was prayed for.
3) On the basis of the said FIR vide Haibargaon TOP GD Entry No. 1137 dated 28/09/2010, Nagaon PS case No. 1653/2010 under Sections 143/448/354/427/436 IPC was registered and police started investigation. Subsequently, a charge sheet was submitted by the police vide Charge Sheet No. 706/10 on 28/11/2010 against the present petitioners. Thereafter, the learned Additional Sessions Judge, Nagaon, by an order dated 03.05.2013 drew up charges against the present petitioners under Sections 147/448/353/427/436 IPC. The said order dated 03/05/2013 is under challenge in this revision petition.
4) I have heard Mr. TJ Mahanta, learned counsel for the petitioners and Mr. BB Gogoi, learned Public Prosecutor for the State.
35) According to the petitioners, charge under Section 436 IPC should not have been framed against them. In view of the materials available on record, the learned Sessions Judge committed error in not exercising jurisdiction under Section 227 of CrPC for discharging the petitioners from Section 436 IPC. Learned counsel for the petitioners has submitted that the materials available on record, may, at best make out a case under Sections 147/448/353/427 of IPC but not under Section 436 of IPC. To support his argument, learned counsel for the petitioners submitted translated copies of statements of witnesses recorded by the police under the provisions of Section 161 of CrPC. According to the learned counsel for destroying government properties, there is specific provision in the Prevention of Damage to Public Property Act, 1984.
6) During investigation, as many as seven witnesses were recorded by the police. All of them deposed before the police that the present petitioners apart from creating unruly situation and destroying public properties, broke down the doors and windows and set them on fire by taking it outside the building. Later on, police came and seized the door panes, burned tables, almirahs and other articles from the place of occurrence. The names of the petitioners were disclosed by all those witnesses. The common material emanating from the statements of the witnesses is that the accused persons came forming an unlawful assembly, created riot like situation, trespassed into the office of the Gaon Panchayat and ultimately broke down the door panes, windows etc., and set them on fire taking it outside the building.
7) Now the question arises whether on the basis of the said materials, a charge under Section 436 IPC can be drawn up against the present petitioners?
48) For a ready reference, Section 436 IPC is quoted herein below:
"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 use 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."
It appears from a bare perusal of Section 436 IPC that the essential ingredients of the said section are :-
i) Commission of mischief,
ii) by fire or any explosive substances,
iii) intending to cause or knowing that it is likely to cause destruction of the building,
iv) which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property.
9) The first ingredient of Section 436 IPC is 'mischief'.
'Mischief' has been defined under Section 425 of IPC and the same is also quoted herein below:
"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 5 or diminishes its value or utility, or affects it injuriously, commits "mischief"."
Thus to make out an offence of mischief, one has to cause or know that it is likely to cause wrongful loss or damage to 'public' or to any 'person' (emphasis supplied).
Now both the words 'person' and 'public' have been defined in the Indian Penal Code under Section 11 and Section 12 respectively, which are quoted below.
11."Person"- The word "person" includes any Company or Association or body of persons, whether incorporated or not.
12."Public"- The word "public" includes any class of the public, or any community.
10) The other important ingredient of Section 436 IPC is to cause destruction of a building. This part of Section 436 IPC, namely, causing or intending to cause destruction of building and that too, by fire or explosive substance, if read together with the word 'mischief' mentioned at the first part of Section 436, it becomes necessary to read the said section along with Section 11 and 12 of the IPC. This shows that the building damaged or intended to be damaged should belong to a 'person' or 'public' within the meaning of Section 11 and Section 12 of IPC. Section 12 is the only plural form of 'person' and thus to constitute an offence of 'mischief' within the meaning of Section 436 of IPC, building damaged or intended to be damaged must be one of 'person' or 'public'. Obviously, government building may not come within the scope of Section 11 and 12 and so consequently not within the scope of Section 436 of IPC. This being the position, it is difficult to hold that by burning the door panes of government office and that too, taking them out of the office premises, can be understood to be 6 an attempt to destroy the building. Moreover, the building in question does not belong to either any person or public within the meaning of Section 11 and 12 of IPC.
11) The learned counsel for the petitioner submits that there is a special law for the purpose of dealing with an offence involving destruction of public properties. The said Act, namely, Prevention of Damage to Public Property Act, 1984 provides offence as well as punishment for causing destruction of the government building and/or private properties. Since there is a special statute covering this aspect, general law prescribed under the Indian Penal Code shall not be applicable in view of well established maxim i.e. "Generalia Specialibus Nondergant". But a perusal of the principle of the said Act shows that the section is in addition to but not in derogation of the other provisions of law. So, existence of the said Act may not ipso facto result in non-application of the IPC. So, this submission of the learned counsel is not acceptable.
12) In the case in hand, the chargesheet and materials annexed thereto show that the accused persons damaged public properties including building of the Government. The Court while framing charge u/s 227, is duty bound to evaluate materials and documents on record to find out if the facts emerging from the materials taken at its face value, discloses essential ingredients of a particular section. It is settled law that Court has power to sift and weigh the evidence for limited purpose and to ascertain it as to whether a prima facie case for grave suspicion which is fully explained, is made out and in doing so, the Court cannot act 'merely as post office or mouth piece of the prosecution'. It is also settled law that even if two views are possible such that one of them is mere suspicion but not grave suspicion as to the guilt of the accused, the accused is entitled to be discharged u/s 227 of CrPC. This would amount to an opinion that there is not sufficient ground for presuming that the accused has committed offence 7 under the said section of law. Although these are established question of law, yet if any reference is necessary, support can be had from the cases of Union of India -vs- Prafulla Kr. Samal reported in 1979(3) SCC 4 (para-10) and CBI vs. K. Narayan Rao reported in (2012) 9 SCC 12. Even in the case of Sajjan Kr. reported in (2010) 9 SCC 368 (para-21), the Hon'ble Supreme Court held that if two views are possible that one of them is of mere suspicion and not of grave suspicion, the accused is entitled to the benefit of Section 227 of CrPC.
13) Applying the above propositions of law, it is clear that the impugned order of framing charge u/s 436 of IPC against the accused petitioners was passed without considering this aspect of the matter. It cannot be denied that the scope of application of Section 436 IPC is not beyond doubt under the facts of the case. Learned trial Court has not applied his mind as to whether destruction of public premises in the manner and method suggested by materials available on record, can at all make out an offence u/s 436 IPC. None of the witnesses have stated that the accused persons caused or intended to cause mischief so as to destroy the building by setting fire or by explosive substance. The building remained intact and the accused persons destroyed the door panes, other articles like tables, chairs etc. by taking them outside of the building. Had the accused persons intended to damage the building by setting fire, there was no question of taking out of the articles from inside and they could have done the same by putting fire on the articles while they remained inside the premises.
14) The materials available on record, makes out a case of damage of government property. Obviously, any property belong to any 'person' and/or 'public' have not been damaged and as such, it could not be said to be a 'mischief' within the meaning of Section 425 of IPC. It is necessary to mention herein that Section 425 IPC 8 is a pre-condition for completion of an offence u/s 436 of IPC. When an offence as defined u/s 425 IPC is performed by setting fire and/or by explosive substance and that too, with respect to a building causing or intending to destroy the same, then and then only the question of committing an offence u/s 436 of IPC arises.
15) In view of the discussions made here-in-above, I am constrained to hold that the learned Addl. Sessions Judge, Nagaon, committed error in framing charge u/s 436 of IPC against the present petitioners, as such the said charge is hereby set aside.
16) Consequent to above, the accused persons shall be liable to be tried for the other offences, namely, offence u/s 147/448/353/427 of IPC only. Incidentally, none of these sections are triable by Sessions and as such the committal order passed by the learned Magistrate is also liable to be quashed. Accordingly, the case will be transferred to the Court of learned Chief Judicial Magistrate, Nagaon, for holding trial.
17) With the above observations and directions, the revision petition is allowed in-part.
JUDGE MKSINHA