IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.44789 of 2008 (1) Arun Kumar Singh, (2) Tarun Kumar Singh, both sons of Late Mahendra Narayan Singh, village Olapur Gangour, PS Gangour (Khagaria), District Khagaria – Petitioners. Vs. (1) The State of Bihar, (2) Sudhir Kumar Singh, son of Yogendra Prasad Singh, village Olapur Gangour, PS Gangour, District Khagaria – Opp. Parties. 2 1.8.2011 Heard learned counsel for the petitioners and the counsel appearing on behalf of the State. Learned counsel for the petitioners submits that petitioner no.1 has died during the pendency of this proceeding. As such this application as far as petitioner no.1 is concerned is dismissed as infructuous. This application has been filed for quashing the order, dated 3.9.2008 passed in S.C. No. 251/2008 by the Additional Sessions Judge, FTRC I, Khagaria by which the petition for discharge has been rejected. The prosecution case is that in order to dispossess the opposite party, he petitioners set fire on 5 quintals of rice and 7 bags of husk. The case has been instituted under sections 342, 323, 452, 457, 380, 436/34 of the Penal Code. Learned counsel for the petitioners submits that the parties are agnates and there is a dispute for the land. The case filed is absolutely frivolous as the petitioners have always remained in possession of the land and as such it cannot be said that they would set fire to something which belongs to them. It is further submitted that section 436 of the Penal Code would not be 2 made out in the facts of this case. Considering the aforesaid facts, this court finds that these issues should be addressed by the court below at the appropriate stage. Specifically it is directed that the court should amend section 436 of the Penal Code if it comes to a finding that the act of the petitioners does not amount to setting fire to human dwelling as defined under section 436 of the Penal Code. This application is disposed of with the aforesaid observation. haque ( Sheema Ali Khan, J.)