Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.11317 of 2011 ====================================================== 1. Gopal Mukhiya S/O Late Raj Narain Mukhiya, R/O Village - Changwara, Tole - Afjala, P.S. Biroul, District - Darbhanga 2. Nand Kumar Mukhiya S/O Mana Mukhiya, R/O Village - Changwara, Tole - Afjala, P.S. Biroul, District - Darbhanga 3. Amla Devi W/O Gopal Mukhiya, R/O Village - Changwara, Tole - Afjala, P.S. Biroul, District - Darbhanga .... .... Petitioner/s Versus 1. The State Of Bihar 2. Tetari Devi W/O Fulo Mukhiya R/O Village - Changwara, Tole - Afjala, P.S. Biroul, District - Darbhanga .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Prem Kumar Jha, Mr. Mukesh Mishra, Mr. Rajesh Kr. Jha and Mr. Nishant Kr. Jha. For the Opposite Party/s : Mr. M.K.Gautam(APP) ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 2 10-07-2012 Heard learned counsel for the petitioners and learned counsel for the State. 2. In this case, petitioners are challenging the order dated 6.7.2009 passed by learned Sub-divisional Judicial Magistrate, Biroul at Benipur in connection with C.R. No. 341 of 2008 and T.R. No. 2103 of 2009 for offences under [STATUTE] . 3. It appears from the record that on 6.3.2008, the informant/O.P. No. 2 filed a typed undated application stating there that on 6.3.2008 at 2.00 A.M. she was sleeping in her Kutiya/Angan, no one was there at darwaza and when he came to Patna High Court Cr.Misc. No.11317 of 2011 (2) dt.10-07-2012 2 / 3 2 ease, she saw fire braking out in one side of the house and further saw in the light that accused persons were setting fire with the help of Lukka in the house and then informant instantly returned to her house and informed the same to her husband. 4. The entire house and household articles were consigned to flames. 5. It has further been stated that the complainant inherited property as ‘Stridhan’ and the accused persons by applying intoxicants on her son illegally got the land executed in their favour, they wanted to take possession of the property on the basis of the alleged document and when she objected, the accused persons set the house on fire. On the basis of their statement, a case was instituted as Biroul P.S. Case No. 18 of 2009 for offences under [STATUTE] . 6. It appears from the record that Police has submitted the Final Form and on the basis of protest petition and solemn affirmation of the complainant, the court below has taken cognizance under [STATUTE] . 7. The counsel for the petitioners has stated that the present case is a harassment it is nothing but a malicious prosecution and it is an admitted fact that the petitioners had got the land by a valid sale deed. Patna High Court Cr.Misc. No.11317 of 2011 (2) dt.10-07-2012 3 / 3 3 8. The counsel for the petitioners has also drawn the recital in the sale deed submitting that the land was belong to them and right from the beginning, the petitioners were in possession of the property. This case has been filed to corroborate their claim that they are possession of the property. 9. The counsel for the State has contradicted the argument of the petitioner as he has submitted that at the stage of the cognizance, the court below has to confine with regard to statement made in the complaint petition and from the complaint petition the case is made out against him. 10. Having considered the rival contention of the parties, this Court is of the view that at this stage the court below has rightly exercised the power under section 190 Cr. P.C. The petitioners will have a liberty to raise all the points before the court below at the time of framing of the charge. 11. Accordingly, this petition is disposed of. Mahesh/- (Shivaji Pandey, J)

Applicable IPC Section: 436

Statute Text:
Section 436 of the Indian Penal Code. 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 description for a term which may extend to ten years, and shall also be liable to fine.