Point of Law: Mischief by fire or explosive substance with intent to destroy house, etc - S. 436 RPC, it is clear that mischief, if committed in reference to a place of worship or a place of home dwelling or a place for custody of property, would fall within purview of S. 436 RPC.

JUDGMENT :

1. This criminal revision petition by the State is directed against the order dated 04.02.2015 passed by the learned Special (Sessions Judge) Poonch [‘trial Court’] in case titled ‘State of J&K vs Sher Baz’ by virtue of which the trial Court has discharged the respondent of the offence punishable under Section 436 RPC.

2. The prosecution case, in brief, is that the complainant Shah Mohd lodged a written report with Police Station, Mandi on 08.01.2015 with the allegations made therein that during the night intervening 7/8th January, 2015 at about 2 am, two shops were set on fire by the respondent-accused when he was sleeping in his house and as a result whereof, loss to the tune of Rs.2.00 lac had been caused. It was claimed that the said shops which were gutted in fire were constructed by the complainant Shah Mohd on the land belonging to the respondent with the arrangement that one of these two shops would be retained by the complainant and the other would be handed over to the respondents. On the basis of this written application, FIR No. 03/2015 for offence under Section 436 RPC was registered in Police Station, Mandi and the investigation set in motion.

3. The Investigating Officer, after completing requisite formalities including recording of statements of witnesses under Section 161 Cr.P.C etc., found the offence under Section 436 RPC established against the respondents, and, accordingly, presented the final report/challan before the trial Court.

4. The matter came up for consideration before the trial Court for framing of charges on 04.02.2015 when the trial Court, after perusing the final report and going through the evidence collected during the investigation, formulated the opinion that, prima facie, no offence was made out against the respondent-accused. The trial Court, in the exercise of its powers under Section 268 Cr.P.C discharged the respondent. The respondents has been discharged by the trial Court primarily on the ground that none of the witnesses, whose statements were recorded by the Investigating Officer under Section 161 Cr.P.C had stated anything against the respondents which would connect him with the commission of offence under Section 436 RPC.

5. Feeling aggrieved and dissatisfied with the order impugned, the State is before me in this revision petition seeking indulgence of this Court to direct the trial Court to frame the charge under Section 436 RPC against the respondent in view of sufficient evidence in this regard collected by the Investigating Officer during the investigation.

6. The order impugned has been assailed primarily on the following grounds:

(i) That the learned trial Court has not properly appreciated the law and facts of the case and has discharged the respondent despite there being sufficient material on record; and

(ii) That the trial Court has ignored the oral and documentary evidence collected by the Investigating Officer which, if appreciated in proper perspective, is sufficient to connect the respondent with the commission of offence punishable under Section 436 RPC.

7. Having heard learned counsel for the parties and perused the record, I am of the considered view that there is sufficient evidence on record to frame the charge under Section 436 RPC against the respondent and the prima facie finding of fact recorded by the trial Court that none of the witnesses in their statements recorded under Section 161 Cr.PC have deposed anything against the respondent, is factually incorrect and contrary to record.

8. The Hon’ble Supreme Court, in the case of Sajjan Kumar vs. CBI, (2010) 9 SCC 368 has, in paragraph 21 of the judgment, laid down the broad principles to be kept in mind while considering the question of framing of charges. For facility of reference, paragraph 21 of the judgment supra is reproduced hereunder:

“21. On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:

(i) The Judge while considering the quest