Naresh Chauhan And Others v. State Of H.p. .

Vivek Singh Thakur, J.:— Petitioners have approached this Court for quashing of FIR No. 4 of 2019, dated 4.1.2019, registered in Police Station, Dhalli, District Shimla, H.P. under Sections 341 and 143 of the Penal Code, 1860 (for short “IPC”).

2. Response/status report stands filed. Record was also made available by respondent-State.

3. As per status report, FIR has been registered on 4.1.2019 on the basis of rukka sent by H.C. Lalit Kumar Incharge Police Chowki, Sanjauli, through Honorary Lady Head Constable Lata, to SHO, Police Station, Dhalli for registration of FIR, stating therein that on that day, since 4 : 00 A.M. due to leakage/overflow of water from Municipal Corporation water tank located in front of shop of Hateshwari Jewellers, water and mud had clogged in the shop of Hateshwari Jewellers, adjacent shops and in the rooms of tenants located on lower side, and in this regard affected house and shop owners were informing concerned officers of Municipal Corporation repeatedly, but no preventive or remedial measures were taken by concerned Officers, whereupon petitioners alongwith others took out benches from shops and put them on the middle of road in front of Hatehwari Jewellers and stopped movement of pedestrians a well as vehicles, and petitioners were leading the crowd gathered on the spot and were provoking them to restrain the public path/road. They have not sought any permission for expressing their resentment either from local administration nor have they informed regarding this. Expressing opinion that act of petitioners was attracting commission of offence under Sections 341 and 143 of IPC, request was made in Rukka to register FIR against petitioners.

4. After receiving rukka, FIR was registered and investigation was carried out. Investigating Officer concluded that petitioners have committed an offence under Sections 341 and 143 of IPC and, therefore, challan was prepared against them and presented in the court on 10.5.2019, which is pending adjudication in the Court of Judicial Magistrate First Class, Court No. 4, Shimla.

5. Sections 143 and 341 of IPC read as under:—

“143. Punishment.-Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

341. Punishment for wrongful restraint.-Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.”

6. Section 341 IPC provides punishment for wrongful restraint and “wrongful restraint” has been defined under Section 339 of IPC, which read as under:—

“339. Wrongful restraint.-Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.”

7. Section 143 IPC provides punishment for member of an unlawful assembly. ‘Unlawful assembly’ has been defined under Section 141 IPC, which reads as under:—

“141. Unlawful assembly.-An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is-

First - To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or

Second - To resist the execution of any law, or of any legal process; or

Third - To commit any mischief or criminal trespass, or other offence; or

Fourth - By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

Fifth - By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.-An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.”

8. For punishment under Section 143 IPC, a person must be member of unlawful assembly and to constitute “unlawful assembly” ingredients either of five circumstances, as defined under Section 141 IPC, must be present. Perusal of Section 141 IPC makes it clear that assembly of five or more persons shall be unlawful assembly for commission of some unlawful act as defined in this Section.

9. It has been alleged that petitioners have committed an offence causing wrongful restraint. For commission of offence of wrongful restraint, as provided under Section 339 IPC there must be voluntary obstruction to any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed. Therefore, for commission of offence of wrongful restraint, there must be a person who is obstructed from proceeding any direction. Existence/presence of person having right to proceed in particular direction, in which obstruction has been caused, is an essential ingredient for wrongful restraint. Where there is no person who has been prevented from proceeding in any direction, having right to proceed in such direction, there cannot be any obstruction to any person and when there is no obstruction to any person, there cannot be any wrongful restraint to any person.

10. Petitioners have placed on record statements of witnesses which have been relied upon by the prosecution in the challan to substantiate the accusation against the petitioners. Witness Head Constable Prakash Chand has stated that he was informed by vehicle owners coming from Cemetery side about obstruction of path by some persons by putting benches on the road with further statement that vehicles from both sides were being prevented from crossing, whereupon he transmitted the said information through his mobile to Police Chowki Sanjauli, whereafter he alongwith Constable Manjeet Singh rushed to the spot for clearing the traffic. According to him, the road remained obstructed for about one hour. But he has not named or pointed out any person, who was prevented by voluntary obstruction by the petitioners from proceeding in any direction either on foot or in his vehicle. Witnesses Constable Manjeet Singh, Constable Neeraj Kumar, Constable Sunil Kumar, Ashwani Sood, Satya Kaundal, HC Om Prakash and LHHC Lata, in their respective statements recorded under Section 161 Cr. P.C., have failed to point out any person who was prevented by the petitioners, so as to attract provisions of Section 339 of IPC. Though it has been stated by some of witnesses that path was obstructed, but who was prevented is not evident from the material on record. It is not the case of the prosecution that either of witness was obstructed by petitioners.

11. Witness Satya Kaundal and Ashwani Sood, in their statements, have stated that petitioners and others were provoked to put benches on the road as for inaction on the part of Municipal Corporation officials/officers by ignoring repeated complaints, their shops and houses were flooded with mud and water causing loss, inconvenience and annoyance to them. It has further come on record in statements of witnesses that after arrival of concerned officers/officials on spot, benches were removed from the road by the petitioners.

12. It has been stated by Head Constable Lalit Kumar that petitioners alongwith others put benches on the road and obstructed the path of persons crossing thereby, but there is not even a single person claiming his right to proceed, alleging obstruction by petitioners to prevent him from proceeding in any direction. There is vague reference that pedestrians and vehicles were obstructed from moving/crossing the road, but not even a single pedestrian or vehicle owner/driver has been cited as a victim and witness whose movement was obstructed and prevented by the petitioners, who had a right to proceed through the road obstructed by the petitioners.

13. In light of such evidence on record, I afraid to accept plea of respondent-State that obstruction, if any, caused by petitioners was voluntary without any cause and was attracting provision of Section 339 IPC.

14. In present case, ingredients of wrongful restraint are missing so as to establish that there was wrongful restraint to any person. Therefore, Section 339 IPC is not attracted and, hence, there cannot be any punishment for Section 341 IPC which provides punishment for wrongful restraint as, there is no wrongful restraint as defined in Section 339 IPC. In absence of sufficient material to prima facie establish or even to suspect commission of offence under Section 339 IPC, the assembly of petitioners and others cannot be termed as an unlawful assembly for want of commission of any offence by the assembly, as defined under Section 141 IPC.

15. In view of above discussion, it is evident that there is lack of presence of ingredient to attract “wrongful restraint”, as defined under Section 339 IPC and thus to attract definition of “unlawful assembly” as defined under Section 141 IPC, in the complaint, evidence gathered and challan presented in the Court. Therefore, I am of the considered opinion that there is no sufficient material on record to proceed further in the trial for alleged commission of offence punishable under Sections 341 and 143 of IPC. Therefore, I find merit in the petition. Accordingly, FIR No. 4 of 2019, dated 4.1.2019 registered in Police Station, Dhalli, District Shimla, H.P. and consequential proceedings arising thereto are quashed and set aside.

16. The petition is allowed and disposed of, in aforesaid terms.

17. Parties are permitted to produce a copy of this judgment, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, passing of order may be verified from Website of the High Court.