IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1314 of 2007 1. BIRCHAND PASWAN 2. ASHOK PASWAN …PETITIONERS Versus 1. STATE OF BIHAR 2. SIYA CHARAN …OPPOSITE PARTIES For the petitioners :Mr.Nil Kamal For State :Mr. Jharkhandi Upadhyay,APP ----------- 07. 29.09.2010 Heard counsel for the parties. Petitioners are accuseds and facing prosecution under diverse sections including section 436 IPC based on a police case. He is aggrieved by the order dated 16.08.2007 passed in Trial No.335 of 2006, whereby application filed under section 227 and 228 Cr. P.C. has been considered and rejected. Counsel for the petitioners, referring to the FIR and certain materials collected in course of investigation, submits that the Palanai(temporary thatched structure) in which the informant was allegedly sleeping which was put on fire, cannot be said to be the dwelling house of the informant. It is thus contended that based on the materials on record, at best a case under section 435 IPC is made out. He relies on a judgment reported in the case of Smt. Perbatta vs. State (1990 Cr.L.J.1665). It is seen from the order that learned trial court has found that the I.O. in course of investigation found the allegation true under section 436 IPC. Learned trial court has also considered the materials on record including seizure memo in order to come to a tentative finding that Palani (temporary 2 structure) was used by the informant as his temporary dwelling house. Learned counsel for the petitioners, however, takes a stand that he shall be satisfied if it is observed that the finding/observation made in the impugned order is/are tentative and shall not prejudice the defence at the trial. Considering the scope of the jurisdiction exercised by learned trial court and the reasonings assigned in the order impugned, this Court is not inclined to interfere with the same. However, it is made clear that non-interference by this Court with the order impugned and the observation made in the present order shall not prejudice the petitioners at the trial. Learned trial court shall consider the evidence brought on record by the parties and thereafter decide the case in accordance with law. With the aforesaid observation, the application is disposed of. hr ( Kishore K. Mandal )