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The State of Gujarat Vs. Vedva Vaghari Moti Nagji and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1973CriLJ148; (1972)GLR684
AppellantThe State of Gujarat
RespondentVedva Vaghari Moti Nagji and anr.
Cases ReferredBabulal v. State
Excerpt:
.....were kept by the complain' ant in this hut were also destroyed due to fire. if the meaning of the word 'building' is restricted only to the construction made with the help of materials generally used for constructing a puce structure then we would be facing with an absurd situation wherein only the puce buildings used by the richer section of the society would be protected and the ketch structures and the huts used by the poor, would be found outside the purview of the protection which section 436. i. it need not be emphasized that the dominant intention of the legislature in framing section 436 is to give protection to those buildings which are used as places of worship or as human dwellings or as places where the property is stored for safe custody. grass or mathuts of the lowest..........and has 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 section 435 read with section 114. i.p.c. but under section 436 read with section 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 section 436 read with section 114, i.p.c.2. the prosecution is passed on the allegation that on 2nd november, 1970 at about 11.00 p. m. the opponents set fire to the complainant's house situated at village nani vavdl in his absence when his.....
Judgment:
ORDER

T.U. Mehta, J.

1. This reference is made by the learned Sessions Judge. Bhavna. gar 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 Palatine who discharged the opponents. accused so far as the offence under Section 436, I.P.C. is concerned but charge. ed them with an offence contemplated by Section 435 read with Section 114 of the Indian Penal Code. The learned Magistrate has held that charge under Section 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 has 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 Section 435 read with Section 114. I.P.C. but under Section 436 read with Section 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 Section 436 read with Section 114, I.P.C.

2. The prosecution is passed on the allegation that on 2nd November, 1970 at about 11.00 p. m. the opponents set fire to the complainant's house situated at village Nani Vavdl in his absence when his (complainant's) wife and children were sleeping in that 'hut'. The house contained of household articles such as utensils, bed sheets, clothes, etc. It is alleged that some currency notes, which were kept by the complain' ant 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 opponents is a 'building' as contemplated to Section 436 of the Indian Penal Code. In this connection, it should be noted that the main distinction between the offence contemplated by Section 435. I.P.C. and the one contemplated by Section 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 Section 435 is punishable with imprisonment which may extend to 7 years and the offence contemplated by Section 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 Session.

4. It is not in dispute that the 'hut' to which the fire is alleged to have been set on 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 Section 436 I.P.C. For this view the learned Magistrate has put reliance upon an Allababad decision in Babulal v. State : AIR1952All146 . 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 Section 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 reasons which follow.

6. It is undoubtedly true that Section 436. I.P.C. contemplates the offence of mischief by fire with intention to cause destruction of any 'building' which is ordinarily used as a place of worship or as a human dwelling or as a place for custody of property. There. lore, the question is what is the meaning of the word 'building'. In Hamiria (1954) MLR (Cr) 337. it is observed that the word 'building' connotes something which is exclusively used for human habitation of a person or group of persons including family. Dictionary meaning of the word 'building' as found in Webster is 'anything that is built as a house, a church, etc.' The verb 'build' Is given four meanings, the first of which is as under:

1. to construct or erect as a house, ship, or wall; to unite into a structure.

The other three meanings are given in the dictionary are not useful for our purpose. But the above quoted dictionary meaning of the verb 'build11 shows nothing to suggest that the construction or erection of a house should necessarily be made of bricks, mortar, cement or other such building materials, which are utilized for the purpose of carrying out a puce structure. Therefore, even a thatched hut made of reeds and mud can be considered a structure and can be included within the meaning of the expression 'building' if the same is found utilized for human dwelling, or for custody of property.

The word 'hut' is defined In the same dictionary as 'a small house, hovel, or cabin; a mean lodge or dwelling; a temporary shelter'. Even in this dictionary meaning of the word 'hut' there is nothing to suggest that a house made of thatched roof, straw, reeds and mud. cannot be considered as a 'building' used for human dwelling. Under the circumstances, the idea that a 'hut' made of thatched roof, straw, reeds and mud would not be covered by the meaning of the word 'building' simply because it is not made of bricks, mortar and other building materials, which are used for constructing a puce structure, appears to be totally foreign to the meaning which the Legislature intended to give to the. word 'building' used in Section 436 of the Indian Penal Code. If the meaning of the word 'building' is restricted only to the construction made with the help of materials generally used for constructing a puce structure then we would be facing with an absurd situation wherein only the puce buildings used by the richer section of the society would be protected and the ketch structures and the huts used by the poor, would be found outside the purview of the protection which Section 436. I.P.C. intends Ito give. It need not be emphasized that the dominant intention of the Legislature in framing Section 436 is to give protection to those buildings which are used as places of worship or as human dwellings or as places where the property is stored for safe custody. A place of worship or a human dwelling or a place for custody of property could be in a simple construction made of thatched roof, and sticks, reeds, mud. and to such construction the protection, which the Legislature intended to give by enacting Section 436. I.P.C. would be available. The Law Commissioners have pointed out this aspect of the matter in their; following observations:

grass or mathuts of the lowest classes are placed on a level with the substantial, secure, and valuable dwellings of the better classes.

These observations clearly bring about the real intention of the Legislature in making a distinction between the provisions of Sections 435 and 436, I.P.C.

7. As for the Allahabad decision of : AIR1952All146 . (supra) on which the learned Magistrate has put reliance, I find that it does not apply to the facts of the present case. The facts of that case were that the accused persons had set fire to a thatched shed which was meant for keeping' horses of the complainant. The High Court considered whether keeping of a horse in a thatched shed would amount to the 'custody' of that horse. While discussing this question. Bhargave J. is found to have observed as under:

A structure made of straw and not of bricks and mortar may be considered a building if it has got the necessary furnishings needed for a building, such as doors, bars etc. An ordinary double thatched shed resting on bamboos or wooden or brick pillars having no doors etc, cannot be treated as a building within the meaning of that term used in Section 436 of the Penal Code The building referred to in the section is a building which can be used as a place of worship or as a human dwelling or as a place for the custody of property The word 'custody' is undoubtedly different from the word 'keeping' and it Implies a sense of security which would be wanting in the case of shed which is only meant to provide shelter from sun and rain and which has no doors etc, consequently, thatched shed in the present case cannot be considered a building for custody of property.' It is obvious from these observations that what has weighed with the High Court Is that in order to be covered by the meaning of the word 'building' the structure In question must be such, which could generate a sense of security either for persons dwelling therein or for the property kept therein it is, therefore, in context of the sense of security that the High Court observed that the structure in question should have furnishing 'needed for a building such as doors, bars, etc.

8. So far as the case under my consideration is concerned, it is evident that the complainant was residing in the gutted hut along with his family members and other household equipments. At the time of the incident his family members were found sleeping in the hut. Under the circumstances all the requirements visualized by the Allahabad High Court in the above referred case, are fulfilled in this case.

9. Under the circumstances, I allow this reference, quash the charge framed by the learned Magistrate under Section 435. I.P.C. and direct him to frame a charge under Section 436, I.P.C. read with Section 114 of the Code and to proceed with the case accordingly.


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