NIRAJ SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) ALL the eleven petitioners herein who figure as accused in Complaint (Protest) Case No. 293 of 1999. are aggrieved by order dated 6.5.2005 passed by the learned Sessions Judge, Gaya, in Criminal Revision No. 161 of 2004 whereby while allowing the Revision preferred by the Com - plainant -O.R No. 2 and setting aside the order dated 11.11.2004 of the learned Judicial Magistrate has directed for commitment of the case to the Court of Sessions as in his opinion a distinct offence under Sec. 436 I.PC. and not Sec. 435 I.PC. was made out from the evidence and allegations.

(2.) AMAS P.S. Case No. 100 of 1999 was registered under Sec. 435/34 l.P.C. against the petitioners and another (since deceased) on the basis of a written report submitted by one Dular Chand Yadav who alleged inter alia that in between the night of 22/23.11.1999 at about 4.00 A. M. all the F.I.R. named accused had set fire and burnt the ten thousand bundles of paddy kept in the shape of Ganj (dump) in his Khalihan located near the Devisthan east of the village. The police after due investigation submitted a final form on 31.12.1999 stating that the case was not true and the final form was accepted by the learned Judicial Magistrate. However, prior thereto, on 2.12.1999 the said informant filed a protest petition (Complaint Case No. 293/99) making out another case completely different from the one spelt out in the written report and also cast aspertions on the investigating police. It appears that the learned Judicial Magistrate after holding an enquiry under Sec. 202 Cr.P.C. took cognizance against the accused persons under Sections 147, 148 and 435 l.P.C. and summoned them and on appearance of the accused persons they were enlarged on bail. It appears that the complainant -O.P. No. 2 dissatisfied with the provisions whereunder cognizance had been taken by the learned Judicial Magistrate filed a petition on 11.12.2003 praying therein that as from the allegations a clear case under Sec. 436 l.P.C. had been made out against the accused persons and the said offence was triable by the Court of Sessions the same should be committed to the Court of Sessions for trial.

(3.) THE prayer did not find favour with the learned Magistrate who by a reasoned order dated 11.11.2004 dismissed the petition holding that a Kurha or Ganj does not come within the purview of the word "Building" as envisaged under Sec. 436 l.P.C. as it was not a "dwelling house". The pernicious complainant O.P. No. 2 took up cudgels and moved the Sessions Court in revision against the order of the learned Magistrate and the learned Sessions Judge by the impugned order dated 6.5.2005 allowed the revision holding that a clear case under Sec. 436 I.P.C. had been made out since Kurha wherein the paddy crops were kept and had been set on fire fell within the ambit of the expression "human dwelling" for the purpose of Sec. 436 I.P.C. and accordingly directed the Magistrate for committing the case to the Court of Session.