DAROPADI DEVI Vs. DAULAT RAM

JUDGEMENT

(1.) The present petition arises out of F.I.R. No. 48 dated 11.7.1993 registered against respondents Daulat Ram and his wife Kanta Rani under sections 436, 437, 506 read with section 34, Indian Penal Code, at Police Station (City) Jalalabad, District Ferozepur.

(2.) Daropadi Devi complainant, who is stated to be the first wife of Daulat Ram petitioner, made a statement to the police that when her husband remarried Kanta Rani about 18 years back by way of an arrangement, Daulat Ram gave her a house to live in and also executed an agreement to that effect in her favour. She further alleged that a room in that house had been rented out by her and on account of disrepair, the roof of the said room fell in. She further alleged that her efforts to get the roof replaced were resisted by Daulat Ram, whereupon some altercation took place between the two. The matter was however amicably resolved with the intervention of certain respectable of the area and she also obtained an order from the Court for repair of the roof. It has been further urged that despite this order Daulat Ram and Kanta Rani carrying a match-box and a can of kerosene, respectively, came to the house in question and threatened to set the room on fire and while carrying out the threat, Kanta Rani sprinkled kerosene in the room and on the Rehri standing outside and Daulat Ram lit the fire and then both of them ran away. On these facts the aforesaid F.I.R. was registered. When the challan was put in Court, it was argued by the learned counsel for the accused that no offence under section 436, I.P.C. was made out against them and at best, the matter fell within section 435, thereof. This plea of the defence was accepted by the trial Magistrate who ordered that a charge under section 435 of the Code be framed against the accused. It is against this order that the present petition has been med by the complainant

(3.) Mr. S.C. Chhabra, learned counsel for the petitioner, has urged that the finding recorded by the trial Court was based on a total mis-conception of section 436 of the Code and a misreading of the documents on record. He has urged that as per the facts set out in the F.I.R. the room in question was a part of a large building and as such the matter fell within the mischief of section 436. He has further urged that even assuming that the room in question was a solitary one, merely because the roof had given way, it would not cease to be a building. Mr. Chhabra has also placed reliance on the word building as defined in the Law Lexicon wherein it has been held to mean something which is exclusively used for human habitation of a person or a group of persons including a family. He has also stated that it was not necessary that for the particular structure to be called a building, it must always have a roof d there can be a building for which a roof may not even be necessary. In support of this proposition, Mr. Chhabra has placed reliance on State of Gujarat v. Vedva Vaghari Moti Nagji and K. v. Neath Canal Navigation Co.