Calcutta High Court (Appellete Side)
Chanchal Ghosh & Ors vs State Of West Bengal & Anr on 15 September, 2014
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
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Form No. J(1)
In the High Court at Calcutta
Criminal Revisional Jurisdiction
Appellate Side
Present
The Hon'ble Justice Ashim Kumar Roy
CRR No. 2207 of 2014
Chanchal Ghosh & Ors.
Versus
State of West Bengal & Anr.
For the petitioners : Mr. Navanil De
For the State : Mr. Imran Ali
Heard on : 05-09-2014
Judgment on : 15.9.2014
Ashim Kumar Roy, J.:
In this criminal revision, the petitioners, who have been charged under Sections 448/342/427/435/436/147/149 IPC in connection with Sessions Case No. 241/2013 now pending before the learned Additional Sessions Judge, 3rd Court, Hooghly, have approached this court for quashing of the said charge so far that relates to the offences punishable under Sections 436/149 IPC.
It is contended by the learned Counsel for the petitioners that police submitted charge-sheet under Sections 147/148/149/448/342/427/435 IPC but while framing charge, the learned Judge also framed a charge against the petitioners for committing an offence punishable under Sections 436/149 IPC. He submitted that there is no materials to support the order of framing the charge, since the subject matter of offence was never a dwelling house.
On the other hand, the learned Counsel for the State submitted that from the case diary it is found that a car was set on fire and not any dwelling house.
Heard the learned Counsel appearing for the parties. Perused the materials collected during investigation from the case diary which is the foundation of the impugned order of 2 framing the charge. Since the question arises for decision, as to whether the framing of charge under Section 436 IPC was justified or not, for better appreciation of the case the provision of section 436 IPC is taken into consideration first and quoted 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 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."
On a plain reading of the said provision, it is abundantly clear that the penal consequences of the said provision will attract when a mischief by fire or any explosive substance is committed, intending to destroy any building which is ordinarily used as a place worship or as a human dwelling or as a place of custody of the property.
Now, going through the order of framing of charge, so far that relates to Sections 436/149 IPC, I find that the learned Judge recorded in the order of framing charge that the petitioners being the members of the unlawful assembly committed mischief intending to cause destruction of a building by fire belonging to the de facto-complainant, which was ordinarily used as a place of human dwelling house and thereby committed an offence punishable under Sections 436/149 IPC.
However, going through the materials collected during investigation, I do not find that there is any iota of materials to show that any building used as a place for human dwelling, was set on fire. It is the categorical case of de facto-complainant and his witness that a car was set on fire. This position has also not been disputed from the side of the State.
Having regard to the above, undoubtedly, the order of framing charge under Sections 436/149 against the petitioners is absolutely illegal and cannot be sustained. Accordingly, the same stands quashed.
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However, the remaining part of the charge shall remain as it is and the petitioners be tried for the same. Since, those offences are Magistrate triable, it is directed the learned Additional Sessions Judge, 3rd Court, Hooghly shall at once transfer the case records to a competent court empowered to hold the trial thereof.
This applications stands allowed and disposed of.
Urgent xerox certified copy of this order, if applied for, be given to the parties within a week from the date of making such application.
(Ashim Kumar Roy, J.)