( 1 ) THIS reference is made by the learned Sessions Judge Bhavnagar in Criminal revision application No. 12 of 1971 of his file which was preferred against the order passed by the Judicial Magistrate First Class at Palitana who discharged the opponents accused so far as the offence under sec. 436 I. P. C. is concerned but charged them with an offence contemplated by sec. 435 read with sec. 114 of the Indian Penal Code. The learned Magistrate has held that charge under sec. 436 I. P. C. could not be framed against the accused because the hut to which the fire is said to have been set is not a building as contemplated by that section. The learned Sessions Judge before whom the above referred revision application No. 12/71 was preferred by the State has disagreed with this view of the learned Magistrate and held that the hut with which we are concerned in this case is a building meant for human dwelling as it was used for residential purpose of the complainant and his family and therefore the learned Magistrate ought to have framed the charge not under sec. 435 read with sec. 114 I. P. C. but under sec. 436 read with sec. 114 I. P. C. The learned Sessions Judge has therefore made this reference proposing that the charge framed by the learned Magistrate should be set aside and he should be directed to frame a charge under sec. 436 read with sec. 114 I. P. C.

( 2 ) THE prosecution is based on the allegation that on 2nd November 1970 at about 11. 00 p. m. the opponent set fire to the complainants house situated at village Nani Vavdi in his absence when his (complainants) wife and children were sleeping in that hut. The house contained household articles such as utensile bed sheets clothes etc. It is alleged that some currency notes which were kept by the complainant in this hut were also destroyed due to fire.

( 3 ) THE question to be considered is whether the hut which is said to have been gutted by the fire alleged to have been set by the opponent is a building as contemplated by sec. 436 of the Indian Penal Code. In this connection it should be noted that the main distinction between the offence contemplated by sec. 435 I. P. C. and the one contemplated by sec. 436 I. P. C. is that while the former envisages mischief by setting fire to any property the latter contemplates mischief by fire to any building which is ordinarily used either as a place of worship or as a human dwelling or as a place for custody of property. The offence under sec. 435 is punishable with imprisonment which may extend to 7 years and the offence contemplated by sec. 436 I. P. C. is punishable with imprisonment for life or with imprisonment for a term which may extend to 10 years. The offence under the latter section is exclusively triable by a Court of Sessions.

( 4 ) IT is not in dispute that the hut to which the fire is alleged to have been set up is used by the complainant and his family members as their dwelling house and that all the household kit of the complainant and his family is stored and kept in this hut. The learned Magistrate is of the view that this hut being a thatched hut having not been constructed with bricks and mortar it is not covered within the meaning of the word building which is found used in sec 436 I. P. C. For this vies the learned Magistrate has put reliance upon an Allahabad decision in Babulal v. State A. I. R. 1952 Allahabad 146. I will advert to this decision at a subsequent stage in this judgment For the present it would be proper to note that the learned Sessions Judge before whom the State had preferred the revision application has been of the opinion that the hut which was gutted in this case is covered by the meaning of the word building which is found used in sec. 436 I. P. C. and that the Allahabad decision on which the learned Magistrate has put reliance has no application to the facts of the present case.

( 5 ) I find myself in agreement with the view taken by the learned Sessions Judge for the rea