M.L. Shrimal, J.
1. Heard learned Counsel for the parties. The brief facts giving rise to this application under Section 438, Cr P.C, are that on May 30, 1982, between 1 and 2 p.m., Smt. Mangi Bai, wife of Budhi Lal, set fire to the hut of Mahesh with the help of an earthern lamp. Jagdish, brother of Mahesh, had gone to 'Bada' for giving fodder to she-buffalo. He saw the accused running back to her house after setting fire to the house of Mahesh. Due to the fast blowing of the wind the fire could not be controlled. It spread to other huts, as a result of which nearby huts also burnt to ashes, causing a loss of about Rs. 40,GC0/- to the owners of the huts. F.I R. of this occurrence was lodged with the Police Station, Kherli on May 31, 1982, at 8 p.m. i.e. after 31 hours of the incident.
2. The contention of the learned Counsel for the petitioner is that generally crimes are not committed in day light. Budhi Lal had filed a suit for recovery of Rs. 814/-against Mahesh. Due to this enmity the petitioner has been falsely implicated in this case. He further submits that in the police diary the Investigating Officer made certain observations on the basis of an information received from a 'Mukhbir' which are damaging to the prosecution case The petitioner being a woman should be released under Section 438, Cr.P.C.
3. Mr. S.B. Mathur, learned Addl. Government Advocate, assisted by Shri P.C. Jain, learned Counsel for the complainant, has placed reliance on a single bench decision of this Court reported as Sumartya v. State of Rajasthan 1981 RLW 548, wherein the Investigating Officer had found the case to be false, yet the learned Magistrate issued a non-bailable warrant and the learned Judge of this Court refused to interfere on the ground that offence under Section 436, I.P.C, was punishable with life imprisonment. Besides, the learned Public Prosecutor submits that the very fact that the accused are in knowledge as to what observations have been made by the Investigating Officer in Policy diary, is in itself sufficient to hold that the accused bears a considerable influence on the Investigating agency, as such if released on bail would tamper evidence. As regards the setting fire to the hut of a poor man in the day, it would suffice to say that generally the villagers are in the field in the day time. It is not a case of an open market or a city, and as such it cannot be said with certainty at this stage that the prosecution story is altogether improbable. Filing of a suit is in itself an evidence of enmity, which cuts both ways.
4. The meaning of the word 'building' cannot be restricted only to the constructions made with the help of material generally used for constructing pucca structures. If such a narrow construction is given, then the courts would be met with difficult situation, where only the pucca buildings of the richer section of the society would be protected and 'kucha' structures, made of bamboos or wood or mud and used by the poor persons, would be found outside the protection afforded by Section 436, IPC. The dominant intention of the Legislature in framing Section 436, IPC is to give protection to those buildings which are used as human dwellings or to places, where the properties are stored for custody for making a building For making a house one does not need a brick or rubble mansion. The purpose of a house is to give protection to a man from the sun, rain and to provide safe custody to whatever property he or she has. The 'kucha' Jhopra, having a thatched roof, very well serves the above purpose and can be termed to be a place meant for dwelling or for the custody of property Poverty is no sin. A poor man scanty means has to live in a grass or mud hut and place whatever articles he has therein. A bag of grain and Moonjcot and workable utensils are as important to a poor man as fiat car to the middle class man and Rambagh Palace Hotel to Maharaja Jaipur. Reference in this connection may be made with advantage to my previous decision in Rajoo and Ors. v. State of Rajasthan 1976 WLN 428. One can very well understand the agony of the five families, whose entire life's earnings were reduced to ashes with the burning of their huts. They have been brought on the road. I do not appreciate the argument of the learned Counsel for the petitioner that with a view to bring pressure on the petitioner, whose husband filed a suit for nearly Rs. 800/- this false case has been foisted. It is not understandable why a man should burn his own hut, which is the only shelter available to him. Granting of anticipatory bail in such a case amounts to put premium on grossly wrong act.
5. The bail application under Section 438, Cr. P.C., is accordingly rejected. It will be open to the petitioner to present hereself before the Magistrate concerned and file an application under Section 437 Cr.P.C. or to approach the Magistrate concerned in the matter as and when she is produced by the police. Learned Magistrate will then decide her application on merits.