RANA MAL Vs. HIMMAT MAL

JUDGEMENT

(1.) THIS revision petition is directed against the order dated August 3, 1988, passed by the Sessions Judge Pali, by which the learned Sessions Judge did not frame the charge order Section 436 IPC against the accused and remitted the case under Section 228 Cr.P.C. to the Court of the Judicial Magistrate, Pali, to try the accused under Section 336 IPC only.

(2.) COMPLAINANT Ranamal, on May 13, 1981, filed a complaint under Sections 436 and 336 IPC against Himmat Mal, Umed Mal and Chandan Mal in the Court of the learned Miinsif and Judicial Magistrate, Pali, It was alleged in the complaint that in the intervening night between 7tji and 8th May, 1981, from the smoke and spark, coming -out from the boiler Chimni (smoke -out -let) of the accused's factory, which is situated in Ranganiya Bas of Pali City, the hut of the complainant, where the cattle of the complainant used to be tied, got fired. At that time, the complainant was got at his house and his wife Smt. Sukiya Devi and one two -years old girl were in the house. On raising an alarm by Smt. Sukiya Devi, the brother of the complainant, namely, Mangi Lal, and other neighbourers came there and informed the fire -brigade on telephone. The Fire -brigade came and with great difficulties, the fire was extinguished. It was, also, alleged in this complaint that earlier to this, also, on February 21, 1979, in the day, at about 2.00 p.m., the sparks coming from the boiler of the accused's factory burnt the residential house of the complainant and on that basis, a complaint was filed against the accused under Sections 336 and 436 IPC and the accused are facing trial in that case, which is numbered as Sessions Case No. 214 of 1980. The learned Magistrate, after recording the statements of the complainant and his witnesses under Sections 200 and 202 Cr.P.C. took cognizance against the accused under Sections 436 and 336 IPC and thereafter committed the accused to stand their trial to the Court of the Sessions Judge, Pali on March 9, 1984. The learned Sessions Judge, after the receipt of the case in his Court, summoned the accused and heard them for framing the charges. After hearing the parties, the learned Sessions Judge came to the conclusion that no case for framing the charge under Section 436 IPC is made -out and he, therefore, discharged the accused under Section 436 IPC and remanded the case to the Court of the Chief Judicial Magistrate, Pali, under Section 228 Cr.P.C. to try the accused under Section 336 IPC. It is against this order that the present revisionpetition has been filed.

(3.) IT has been contended by the learned Counsel for the complainant that with respect to the earlier incident dated February 21, 1979, a case under Sections 436 and 336 IPC was registered against the accused and they were charged for these offences by the learned Sessions Judge, Pali. The accused preferred a Criminal Miscellaneous Petition No. 155 of 1980, first for the quashing of the order taking cognizance, which was dismissed by this Court. He further submitted that against the order passed by the learned Sessions Judge, framing the charges in the same circumstances against the accused under Sections 436 and 336 IPC the accused preferred a revision petition before this Court and that revision petition was dismissed by this Court on May 10, 1988, and the accused are facing trial before the learned Sessions Judge under Sections 436 and 336 IPC The facts and the circumstances of the two cases are the same and, therefore, the learned Sessions Judge has committed an error in not framing the charge under Section 436 IPC also, against the accused. He has, further submitted that the ingredients of framing the charge under Section 436 IPC are fully satisfied in the present case and, therefore, the learned lower Court was not justified in discharging the accused -respondents under Section 436 IPC. The learned Counsel for the accused -respondents, on the other hand has supported the order passed by the learned lower Court. He has further submitted that the ingredients of the offence under Section 436 IPC are not available in the present case and, therefore, the learned lower Court was justified in discharging the accused -respondents under Section 436 IPC. Regarding the rejection of the revision petition filed by the accused against the order framing the charge in the earlier case, the learned Counsel for the accused submitted that that revision petition was dismissed not on merits but on the other ground that it was not maintainable. He, therefore, prayed that the rejection of the revision petition is of no help to the complainant. The learned Public Prosecutor, also, supported the order passed by the learned lower Court. I have perused the order passed by the Court below and the record of the case.