Punjab-Haryana High Court
Raj Singh vs State Of Haryana on 9 October, 2002
Equivalent citations: 2003CRILJ1588
Author: Nirmal Singh
Bench: Nirmal Singh
ORDER Nirmal Singh, J.
1. The case of the prosecution is that on 20-2-1999 at about 10.00 a.m. when the petitioner along with his father and other family members was present in his house. Dalpat Sarpanch, Ram Niwas, Ranbir, Ravinder, Raj Karan, Balbir, Surender, Shiv Lal, Vinod and Leela came and started demolishing 5 feet boundary wall. They were restrained from doing so but they did not pay any heed. The assailants also stated that they will put the house of the petitioner on fire and after this, the petitioner will be thrown in the fire. Dalpat Singh put his chhan on fire adjoining to his residential house. The petitioner along with his family members ran away from the spot due to the fire. On seeing the fire many people of the village collected there and on seeing the persons, the assailants ran away from the spot. The buffaloes tied near the chhan were saved with great difficulty.
2. After investigation report under Section 173, Cr. P. C. was presented before the illaqua magistrate under Sections 147, 148, 506, IPC. Regarding offence under Section 436, I.P.C. it was mentioned that the proceedings under Section 182, Cr. P. C. be initiated against the petitioner as he has put his chhan on fire and has made a false report. The case was committed to the Court of Sessions. The learned Additional Sessions Judge, Bhiwani framed the charge under Sections 147, 148 and 506, I.P.C. against 11 accused persons and the petitioner was charge sheeted under Section 436, I.P.C.
3. Shri Baldev Singh, learned Senior Counsel submitted that the order framing the charge against the petitioner under Section 436, I.P.C. is erroneous. He contended that if the report of the petitioner given to the police is found to be false, then the petitioner can be prosecuted under the relevant provision i.e. under Section 182, Cr. P. C. but he cannot be charge-sheeted under Section 436, I.P.C. He further contended that no offence under Section 436, I.P.C. is made out as the chhan does not come under the definition of building. In support of his submissions, he has relied upon Smt. Jashmero v. State of Haryana, (1979) 81 Pun LR 420 : (1980 Cri LJ NOC 46).
4. Shri K.S. Chauhan, DAG, Haryana submitted that it has come on the record that the petitioner has put his own chhan on fire and he has tried to falsely implicate, Raj Karan, Ranbir, Ravinder, Vinod Kumar, Shiv Lal, Kartar Singh, Ram Niwas, Surender, Ghasi Ram, Balbir, Mukhtiar alias Lali. He contended that whoever commits any mischief to his own property or to the property of anyone else, he commits the offence under Section 436, I.P.C. He further submitted that trial Court has rightly framed charge against the petitioner.
5. I have given my thoughtful consideration to the rival contentions of the learned Counsel for both the parties and have perused the record.
6. The petitioner lodged the complaint with the police that Dalpat Sarpanch and others have put his chhan on fire but during investigation, it was found that chhan was set on fire by the petitioner himself and for that he was charge-sheeted under Section 436, I.P.C.
Section 436, I.P.C. reads as under :---
"436. Mischief by fire or explosive substance with intent to destory 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 or 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."
7. Mischief has been defined in Section 425, I.P.C. which reads as under :--
"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 di- minishes 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 persons jointly.
8. A perusal of the above sections shows that damage or loss must be caused to the property of the public or any other person, so, no mischief is said to have been committed if a person causes loss to his own property. In the instant case, as it has been noted above, during investigation it revealed that complainant has himself set the chhan on fire, therefore, no mischief is said to have been committed.
9. After perusing the ingredients of Section 436, I.P.C., the question for consideration is that whether chhan comes under the definition of a building?
10. Chhan or chappar is the thatchered unit or thatchered roof. It does not come under the definition of a building. In Smt. Jashmero (1980 Cri LJ NOC 46) (Punj and Hary) (supra) it has been held as under :--
"The only other question that falls for consideration is as to the nature of offence committed by the appellant. The conviction of the appellant can be upheld under Section 436 of the Indian Penal Code if the prosecution has succeeded in proving that the Chhan which was burnt during the fire, was in the nature of a building, which was being used as a place for custody of the property. There is no doubt that the prosecution has been able to show that the Chhan in question belonging to Nirmal Kumar P.W. (sic) were tethered in the Chhan and the said bullocks were got burnt by fire but there is no evidence led on the record to show that the Chhan In question was a building. In ordinary parlance, in villages a Chhan is a Kutcha structure which is roofed by straws or other such like material and the prosecution has failed to lead any evidence to show that the Chhan was in the form of a construction which could be termed as a building within the meaning of Section 436 of the Indian Penal Code. In Babulal v. State (AIR 1952 All 146 : 1952 Cri LJ 294), it was held that a structure made of straw and not of bricks and morter may be considered a building if it has got the necessary furnishing needed for a building such as doors, bars etc. An ordinary double thatched shed rest-Ing on bamboos or wooden or brick pillars having no doors etc. cannot be treated as a building within the meaning of the term used in Section 436 of the Indian Penal Code. Since the prosecution has failed to prove the nature of Chhan, the benefit of doubt has to go to the appellant. In this view of the matter, it is difficult to hold that the appellant was guilty for an offence under Section 436 of the Indian Penal Code. However, the appellant will certainly be guilty for an offence under Section 435 of the Indian Penal Code as she has been found to have committed the mischief by fire which resulted into the damage of property of the P.Ws. as defined under Section 435 of the Indian Penal Code. Consequently, the conviction and sentence of the appellant under Section 436 of the Indian Penal Code is set aside and she is convicted under Section 435 of the Indian Penal Code."
11. Once chhan does not comes under the definition of building, then petitioner cannot be charge-sheeted under Section 436, I.P.C. But when a person gives false information with intent to cause a public servant to use his lawful power to the injury of another person, the offence under Section 182, I.P.C. is made out. Section 182, I.P.C. read as under :--
"182. False information with intent to cause public servant to use his lawful power to the injury of another person.-- Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant--
(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him or.
(b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
12. For the reasons recorded above this petition is accepted. The charge framed against the petitioner under Section 436, I.P.C. cannot sustain and petitioner be discharged. However, prosecution is at liberty to proceed against the petitioner under Section 182, I.P.C.