Setting Fire to Temporary Structure Does Not Attract Section 436 IPC: Calcutta High Court Modifies Conviction to Lesser Charge

In a notable judgment rendered by the Hon’ble Justice Shampa Dutt (Paul) of the Calcutta High Court, the appellant Haradhan Malik, previously convicted under Section 436 of the Indian Penal Code (IPC) for setting fire to a tea stall, saw his conviction altered. The court held, “The essential ingredients of Section 436 IPC not met when the property is not a ‘building’ used for specified purposes.” Consequently, his conviction was modified to Section 435 IPC, which deals with mischief by fire with the intent to cause damage.

The pivotal legal discussion centered around the interpretation of Sections 435 and 436 of the IPC. Initially, the appellant was charged under Section 436 IPC, which pertains to mischief by fire intended to destroy a building used for residence, worship, or custody of property. However, upon appeal, it was contended that the property in question was a temporary thatched tea stall, not fitting the stringent definitions under Section 436.

The appellant was accused of setting fire to the complainant’s tea stall under a bridge on June 4, 2015. The prosecution aimed to establish that Malik acted with intent to damage by setting the stall ablaze due to a personal vendetta, alleging the sale of illicit liquor at the stall. The case pivoted on whether the structure qualified as a ‘building’ under Section 436 or if the lesser charge under Section 435 was more appropriate given the temporary nature of the stall.

Nature of Structure: Justice Dutt noted, “The structure in question, being temporary and primarily made of bamboo and hay, does not constitute a ‘building’ as required under Section 436 IPC.”

Applicability of Charges: The judgment clarified that while the appellant did commit mischief by fire, the intent required for Section 436 was not established as the property was not used for the purposes specified in the said section.

Legal Interpretation and Precedents: Citing several precedents, the court underscored the flexibility within IPC and the Criminal Procedure Code (CrPC) to adjust charges based on the material facts presented during the trial.

The court set aside the conviction under Section 436 IPC and instead convicted Malik under Section 435 IPC. He was sentenced to the time already served and fined Rs. 10,000. The fine, if collected, was directed to be paid to the victim as compensation. This decision aimed to align the punishment more closely with the nature of the offense and the damage caused.

Date of Decision: 13 May 2024

Haradhan Malik @ Hari vs The State of West Bengal