T.R. Handa, J.
1. The petitioners seek to invoke the revisional and inherent jurisdiction of this Court under Sections. 397 and 482 of the Code of Criminal Procedure for quashing of the criminal proceedings pending against them in the Court of the Chief Judicial Magistrate, Simla vide case No, 44/10 of 1980 on the file of that Court.
2. It appears that PW Tota Ram started constructing a house in village Bhoral in or about September, 1978. Shri Adam Ram respondent No. 2 asserted his claim over the site of that construction and in order to establish that claim he approached the Civil Court from where he initially succeeded in obtaining a temporary injunction restraining Tota Ram from raising construction on that site. that temporary injunction was, however, sub-sequently vacated by the Court on 26-9-1978 whereafter Tota Ram resumed his construction.
3. On the night of 6th November, 1978 when the aforesaid construction was still in progress PW Nokh Ram happened to pass by that side when he detected that the house of Tota Ram under construction was ablaze. Nokh Ram PW, however, could not find any person near that site. He then proceeded to the residence of Tota Ram to apprise him of the occurrence but as Tota Ram was then out of station, PW Nokh Ram conveyed that information to PW Rup Chand, an employee of Tota Ram. PW Rup Chand along with some others then visited the site the same night and confirmed the information earlier received by him.
4. On the next day, that is, 7-11-1978 Rup Chand PW lodged the First Information Report with the Police Station Dhalli. The report mentioned the simple fact that the house of Tota Ram had been gutted by fire without naming any suspects or narrating the circumstances leading to the fire.
5. After completion of the investigation the police filed a charge-sheet against the present petitioners and Adam Ram respondent No. 2 in the Court of the Chief Judicial Magistrate alleging that a case under Sections 435/427/34 IPC had been made out against all the three accused persons.
6. After hearing arguments of the prosecution and the accused under Section 239/240 of the Code, the learned Chief Judicial Magistrate came to the conclusion that a prima facie case under Section 435 read with Section 34 IPC had been made out against all the three accused and hence he proceeded to frame charges against them accordingly. The contentions of the petitioners that they were in no manner involved in the alleged offence, that the charge against them was groundless and that any further proceedings against them would only be an abuse of the process of the Court, appears to have cut no ice with the learned Magistrate.
7. It need hardly be emphasized that in the conduct of the warrant cases by the Magistrates, the stage at which the Magistrate is required to consider whether to discharge or to frame a charge against a particular accused is of vital importance both from the point of view of the prosecution as also the accused. It is in view of this importance that the decision whether to discharge the accused or to frame a charge against him has not been left to the unfettered and unbridled discretion of the Magistrate and definite guidelines have been prescribed in Sections 239 and 240 of the Code which the Magistrate must observe and comply with before arriving at his conclusion of discharging the accused or of framing a charge against him. These provisions demand that the Magistrate must consider the police report and all the documents furnished by the police along with such report and if need be, to examine the accused hear the arguments of both the prosecution and the accused and then arrive at his conclusion, independent of and uninfluenced by the police opinion, whether the material placed before him, if accepted at its face value, would furnish a reasonable basis or foundation for the accusation. In doing so, the Magistrate is of course expected to apply his judicial mind to the facts of the case keeping throughout in view the essential ingredients of the offence for which the accused is sought to be charged. If on such consideration of the aforesaid material and the provisions of the relevant law, the Magistrate comes to the conclusion that there is no ground to connect the accused with the offence and that there is no basis or foundation for the charge, the Magistrate would have no option but to discharge the accused.
8. In the instant case although the impugned order of the learned Chief Judicial Magistrate does suggest that he had heard arguments of the prosecution and the accused before framing the charge against the petitioners, there is no indication if he considered and applied his mind to the police report and the documents furnished to him along with that report. A scrutiny of the police report and the documents including the statements of the witnesses recorded under Section 161 Cr.P.C. would, how ever, suggest that such documents were never considered by the learned Magistrate before passing the impugned order and in passing such order he appears to have been influenced more by the opinion of the police as expressed in the police report then by any other factor.
9. It would be apparent from a perusal of the police report and the documents attached therewith including the statements recorded under Section 161 Cr.P.C. that there is no ocular or direct evidence of the actual commission of the offence under Section 435 I.P.C. available in this case. The prosecution relies upon circumstantial evidence only. The circumstances which according to the prosecution, can be said to have been established in the course of investigation are as under:
1. Relationship of the accused inter se as would be apparent from the statements of the various witnesses recorded under Section 161 Cr.P.C. which prove that petitioner No. 1 Smt. Badamo is the sister of petitioner No. 2 Uma Dutt and is the wife of respondent No. 2 Adam Ram.
2. Dispute between Adam Ram respondent No. 2 and Tota Ram over the site of the building alleged to have been destroyed in fire, as is apparent from the copies of pleadings of the suit filed by Adam Ram respondent No. 2 as also copy of the order passed in that suit vacating the injunction earlier granted in favour of respondent No. 2.
3. Threats earlier extended by Adam Ram respondent No. 2 to destroy the house on the site in dispute if raised by Tota Ram.
4. Suggestions and requests earlier made by Uma Dutt petitioner No. 2 to P. Ws. Nokh Ram and Balak Ram to help Adam Ram respondent No. 2 in obtaining nossession of the disputed site with a further suggestion that m case of need these P. Ws. should set the house over the site in dispute on fire.
5. Presence of petitioner No. 1 Badamo and her husband respondent No. 2 Adam Ram having been noticed by P. Ws. Nokh Ram and Balak Ram an hour or so before the alleged occurrence, when Adam Ram was seen dismantling the windows of the house under construction.
6. Detection of the fire soon after the presence of Adam Ram respondent No. 2 and Badamo petitioner No. 1 was noticed.
10. It can thus be seen that so far as Uma Dutt petitioner is concerned the only material which the police could collect against him in the course of investigation is that some days before the occurrence he approached P. Ws. Nokh Ram and Balak Ram for suggesting to them to help Adam Ram respondent in obtaining the land in dispute and if need be to set on fire the house of Tota Ram. There is no suggestion whatsoever in the police investigation if Uma Dutt petitioner on the day of occurrence was present anywhere near the site of the house alleged to have been gutted or if he in any manner participated in the commission of the offence for which he has been charged. He is thus not alleged to have taken any part in the commission of offence leading to the destruction of the house by fire. He has been charged under Section 435 I: P. C. with the aid of Section 34 I.P.C. In order to attract Section 34 it is essential that several accused participate not only in design but also in action. In other words it is not sufficient that several accused share a common intention to commit an offence but they should also actually participate in the commission of the offence by doing some act or the other in furtherance of the common intention. In the instant case no such act has been attributed to Uma Dutt petitioner. Even if it be assumed that he had at one time shared a common intention with his other co-accused to set the house on fire, he did no act either of active or of passive nature in furtherance of such common intention and hence there is no justification for presuming that he was in any manner involved in the commission of the offence for which he was charged. The charge in his case thus rests on no foundation and needs to be quashed.
11. As regards petitioner No. 1, her case of course stands on a different footing. She is alleged to have been seen present on the site of occurrence a short-while before the fire was detected, when she was in the company of her husband Adam Ram respondent No. 2 who was then dismantling the windows of the house which was later set on fire. In her case, it cannot of course be said that the charge is groundless.
12. I would accordingly while upholding the charge under Section 435/34 I.P.C. as framed against Smt. Badamo petitioner No. 1 quash the similar charge framed against Uma Dutt petitioner No. 2. I would further quash the criminal proceedings pending against Uma Dutt petitioner in the court of Chief Judicial Magistrate vide Case No. 44/10 of 1980 on the file of his court.