Shanid T. v. State of Kerala & Public Prosecutor

## IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 ## **Bail Appl..No. 9063 of 2011** CRIME NO.1191 OF 2011 OF HOSDURG POLICE STATION, KASARAGOD. PETITIONER/ACCUSED NO.1: SHANID.T., AGED 29 YEARS, S/O.MOOSA, THIDILIL (H), T.D.ROAD, NEAR KOTTAKKAL ARYAVAIDYASALA, HOSDURG VILLAGE, KASARAGOD DISTRICT. BY ADV. SRI.K.P.HARISH SRI.M.S.BREEZE. ## RESPONDENTS: COMPLAINANT & STATE: 1. STATE-REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2. THE STATION HOUSE OFFICER, (CRIME NO.1191 OF 2011 OF HOSDURG POLICE STATION), KASARAGOD DISTRICT-671 313. PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 23/11/2011, THE COURT ON 14/12/2011 PASSED THE ## **K.T.SANKARAN, J.** ## **-----------------------------------------------------Bail Appl. NO.9063 OF 2011 -----------------------------------------------------Dated this the 14[th] day of December, 2011** ## **O R D E R** This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is accused No.1 in Crime No.1191 of 2011 of Hosdurg Police Station, Kasaragod District. 2. The offence alleged against the petitioner is under Section 436 read with Section 34 of the Indian Penal Code. 3. The prosecution case is that on 19/10/2011 at about 3.30 A.M., the accused persons set fire to the Scorpio Car belonging to the brother of the defacto complainant. The car was parked in the car porch of the house of the defacto complainant. 4. The petitioner was arrested on 21/10/2011 and he was remanded to judicial custody. The petitioner moved an application for bail before the court of the Judicial Magistrate of the First Class-I, Hosdurg, which was dismissed as per the order dated 22[nd] October, BAIL APPL. NO.9063 OF 2011 :: 2 :: 2011. The learned Magistrate held that considering the gravity of the offence, bail could not be granted to the petitioner at that stage. 5. Sri.M.S.Breeze, the learned counsel for the petitioner, submitted that even if it is taken that all the allegations levelled against the accused are true, no offence under Section 436 of the Indian Penal Code is made out. He submitted that on the basis of the allegation made, only an offence under Section 435 of the Indian Penal Code would be made out. The offence under Section 435 of the Indian Penal Code being a bailable offence, it is submitted that detention of the petitioner in judicial custody was illegal. 6. Section 436 of the Indian Penal Code reads as follows:- “ _**436. Mischief by fire or explosive** -_ _**substance with intent to destroy house, etc.** Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with imprisonment for life, or with imprisonment of either_ BAIL APPL. NO.9063 OF 2011 :: 3 :: _description for a term which may extend to ten years, and shall also be liable to fine.”_ 7. Mischief is defined under Section 425 of the Indian Penal Code thus:- “ _**425.Mischief.-** Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits”mischief”._ 8. Section 435 of the Indian Penal Code provides for punishment for the offence of mischief by fire or explosive substance. Section 435 reads as follows: “ _**435. Mischief by fire or explosive substance with intent to cause damage to amount of one hundred or (in case of agricultural produce) ten rupees** .-- Whoever commits mischief by fire or any explosive substance intending to cause, or knowing it to be likely that he will thereby cause, damage to any property to the amount of one hundred rupees or_ BAIL APPL. NO.9063 OF 2011 :: 4 :: _upwards or (where the property is agricultural produce) ten rupees or upwards, shall be punished with imprisonment of either description for a term which may extent to seven years, and shall also be liable to fine.”_ 9. Though Section 435 of the Indian Penal Code provides for a punishment of imprisonment which may extend to seven years, the offence is bailable going by the first Schedule of the Code of Criminal Procedure. The offence under Section 435 can be tried by the Magistrate of the First Class. Section 436 of the Indian Penal Code provides for imprisonment for life or with imprisonment of either description for a term which may extend to ten years. The offence under Section 436 is non-bailable and it is triable by a Court of Session. 10. In order to attract Section 436 of the Indian Penal Code, the following ingredients must be satisfied: i) There must be commission of mischief by fire or any explosive substance. ii) It should have been committed intending to cause, or knowing it to be likely that the accused will thereby cause the BAIL APPL. NO.9063 OF 2011 :: 5 :: destruction of any building. iii) The building should be one which is ordinarily used as a place of worship or as a human dwelling or as a place for custody of property. 11. Sections 435 and 436 of the Indian Penal Code should be read along with Section 425 of the Indian Penal Code. To attract the definition of mischief, it is not necessary that there should be destruction of any property. It is sufficient if there occurs a change in the property or in the situation thereof as to destroy or diminish its value or utility or to affect it injuriously. If a person commits mischief by fire intending to cause or knowing it to be likely to cause destruction of any building, Section 436 is attracted. If the intention or knowledge is to damage any property to the amount of `100/- or upwards or agricultural produce of `10/-or upwards, Section 435 is attracted. If mischief by fire is caused to any property which attracts Section 435, but with an intention to cause or with the knowledge that it is likely to cause destruction of any building, Section 436 will be attracted, though only damage as contemplated in Section 435 resulted. What is important is the intention or knowledge as BAIL APPL. NO.9063 OF 2011 :: 6 :: mentioned in Sections 435 and 436. Whether the intention or knowledge was to damage property mentioned in Section 435 or building mentioned in Section 436 is the relevant question. If mischief by fire is caused with intention or knowledge to damage property, Section 435 is attracted. On the other hand, if the intention or knowledge is to cause destruction of any building, then Section 436 would be attracted. 12. In order to attract Section 436 of the Indian Penal Code, the 'intention' or 'knowledge' to cause destruction of any building of the nature mentioned in Section 436 is necessary. A question would arise as to whether destruction of the whole building is necessary or whether destruction of a portion thereof is sufficient to attract Section 436 of the Indian Penal Code. If a person sets fire to an inflammable substance kept in a house with intent to destroy the house, but before the destruction of the house takes place the fire is put off, would Section 436 be attracted in such a case? A person sets fire to a heap of hay kept near a residential building with intent to destroy the building. The heap of hay was destroyed by fire, but before any considerable part of the building was destroyed, the fire was put off. Could it be said that only Section 435 is attracted and not Section BAIL APPL. NO.9063 OF 2011 :: 7 :: 436? A person set fire to his own thatched house with intent to destroy several thatched houses nearby and the house of the miscreant was destroyed by fire, but before the other houses were affected, the fire was put off. Would Section 435 or Section 436 apply? To my mind, the intention or knowledge of the accused is the relevant criterion. If the accused commits mischief by fire intending to cause destruction of any building or knowing it to be likely to cause destruction of any building, by setting fire to the kerosene, the heap of hay or thatched house as mentioned in the above examples, I am of the view that the offence under Section 436 would be made out. On the other hand, if the intention or knowledge was only to damage the particular property which was set on fire and no destruction of any building was caused, only the offence under Section 435 would be made out. Actual destruction of the building is not always necessary to attract Section 436 of the Indian Penal Code. It is also not necessary that the building should be destroyed by fire or severely damaged. It is sufficient if there was every likelihood of the building being destroyed by fire by the criminal act of mischief by fire. The intention to destroy any building or the knowledge of the likelihood of destruction of the building, are all matters for evidence. Intention or knowledge is a state of mind BAIL APPL. NO.9063 OF 2011 :: 8 :: which could be decided only on appreciation of evidence or on consideration of the materials on record or both. 13. Sri.K.K.Rajeev and Sri.R.Ranjith, the learned Public Prosecutors relied on the decisions of the Allahabad High Court in **Ram Pratap and another v. Emperor (AIR (31) 1944 Allahabad 167)** and **Babu v. Rex (AIR (36) 1949 Allahabad 620).** 14. In **Ram Pratap and another v. Emperor (AIR (31) 1944 Allahabad 167),** the accused persons burnt some furniture in a railway station. A question arose whether Section 436 of the Indian Penal Code would be attracted. The Allahabad High Court held thus: “ _There is no doubt that the appellants and their associates brought kerosene oil, poured it over the furniture inside a room at the station and set fire to it. They must have known that there was a danger of their destroying the building. Learned counsel has argued that a solid masonry building could not be destroyed by fire in this way. This argument does not appeal to me. There is nothing to show the nature of the building and any type of building may be destroyed by heat_ BAIL APPL. NO.9063 OF 2011 :: 9 :: _engendered by the burning of furniture or other articles inside the building._ ” ## 15. In **Babu v. Rex (AIR (36) 1949 Allahabad 620),** the accused set fire to a fallen thatch near the thatched house of the accused, which is very close to several other thatched houses. Holding that the accused was guilty under Section 436 of the Indian Penal Code, the Allahabad High Court held thus: “ _The words 'any building' in that section may not necessarily refer to the building primarily destroyed by the accused. They may cover any other building close by in regard to which there might have been an intention in the mind of the accused to destroy the same. In the present case the learned Magistrate has pointed out that there were several Hindu houses round about the appellant's thatch, there being also, no doubt, his own residential house, only five paces away from it. It is true that if he had any intention, by burning his own thatch, to destroy the houses of the Hindu neighbours, he must be credited with an intention to destroy his own house also which prima facie would not be likely. But apart from any question of intention, if the accused knew that he was likely, by his act, to destroy any neighbouring houses, an offence under S.436, Penal Code would be_ BAIL APPL. NO.9063 OF 2011 :: 10 :: _complete. In the present case, as I have said, there being other houses closeby, the accused must be held to have known that his act of burning his own thatch was likely to destroy those other houses also, although, fortunately, such a contingency in the present case never came. I, therefore, hold that the accused was guilty under S.436, Penal Code.”_ 16. The learned counsel for the petitioner relied on the decision of the Gujarat High Court in **The State of Gujarat v. Vedva Vaghari Moti Nagji and another (1973 Crl.L.J.148)** and the decision of the Bombay High Court in Crl.A.No.328 of 2009. In the decision of the Gujarat High Court, it was held thus: “... 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.” In that case, a hut was set on fire. The Gujarat High Court held that the accused was guilty under Section 436 of the Indian Penal Code. BAIL APPL. NO.9063 OF 2011 :: 11 :: In the decision of the Bombay High Court referred to by the learned counsel for the petitioner, the conclusion was arrived at on appreciation of facts and the ingredients of Section 436 are generally stated. I do not find anything in the decision of the Gujarat High Court or the Bombay High Court referred to above, which goes against the dictum laid down by the Allahabad High Court. I respectfully agree with the view taken by the Allahabad High Court in **Ram Pratap and another v. Emperor (AIR (31) 1944 Allahabad 167)** and **Babu v. Rex (AIR (36) 1949 Allahabad 620).** 17. Learned Public Prosecutor submitted that there were visible signs of the car porch also having been affected as a result of burning of the car by fire. It is submitted that the house also would have been destroyed by fire had not the fire been put off. It is also pointed out that there are materials to indicate that the accused telephoned to the husband of the defacto complainant that his house would be destroyed by fire. It is submitted that the intention of the accused to destroy the house was clear and therefore, Section 436 would be attracted in the case. 18. Learned Public Prosecutor submitted that the petitioner is BAIL APPL. NO.9063 OF 2011 :: 12 :: involved in Crime No.333 of 2011 of Chittarickal Police Station for an offence under Section 436 read with Section 34 of the Indian Penal Code. The petitioner is also involved in several other offences. 19. For the aforesaid reasons, I reject the contention put forward by the learned counsel for the petitioner that even if all the allegations are taken as true, only Section 435 of the Indian Penal Code would be attracted and that Section 436 would not apply. This prima facie conclusion is arrived at only for the purpose of deciding this Bail Application and the final conclusion has to be reached on the basis of the evidence and materials on record. The prima facie conclusion arrived at while disposing of the Bail Application should not be taken as a finding at the time of trial. 20. The petitioner is in judicial custody since 21.10.2011. The investigation is not over. In the facts and circumstances of the case, I am inclined to grant bail to the petitioner, however, only with effect from 20.12.2011. 21. The petitioner shall be released on bail only on 20.12.2011 on his executing bond for Rupees Twenty five thousand BAIL APPL. NO.9063 OF 2011 :: 13 :: with two solvent sureties for the like amount to the satisfaction of the Judicial Magistrate of the First Class I, Hosdurg, subject to the following conditions: - a) The petitioner shall report before the investigating officer between 9 A.M. and 11 A.M. on all Mondays, till the final report is filed or until further orders; - b) The petitioner shall appear before the investigating officer for interrogation as and when required; - c) The petitioner shall not try to influence the prosecution witnesses or tamper with the evidence; - d) The petitioner shall not commit any offence or indulge in any prejudicial activity while on bail; - e) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Application is allowed as above. ## **(K.T.SANKARAN) Judge** ahz/