Ramesh Jogi v. The State Of Andhra Pradesh

HONOURABLE SRI JUSTICE A. SHANKAR NARAYANA CRIMINAL PETITION No.2004 OF 2017 ORDER:

The present Criminal Petition is filed to quash the First Information Report in Crime No.58 of 2017 registered by the Station House Officer, Nandigama Police Station, Nandigama, for the offences punishable under Sections 143, 341 and 353 read with Section 149 of the Indian Penal Code, 1860 (IPC), under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.).

2. The facts that gave rise to registering the First Information Report (FIR) and filing the present petition, briefly, stated are thus: (a) On 28.02.2017, around 6.00 a.m., morning hours, a private travel bus belonging to "Diwakar Travels" with Registration No.AP-02-TC-7146, moving with around 45 passengers, to Hyderabad from Bhubaneshwar, met with an accident and fell into a culvert near Moolapadu Village in Penuganchiprolu Mandal, near Vijayawada, resulting in death of eleven (11) persons including the driver. The dead bodies were rushed to the Government Hospital, Nandigama and they were being kept for post-mortem.

(b) Petitioner No.1 claims to be the State's Spokesperson of Yuvajana Shramika Rythu Congress Party (for short 'YSRCP), a recognised political party, and he was elected

from Mylavaram Constituency during the year 2009 General Elections and the other petitioners are sympathisers of that party.

(c) Petitioner No.1 went to the Government Hospital to console the families of victims and having found that no arrangements were made to the bereaved families by the authorities, he arranged food and water to them and requested the Government officials to make sure that approximate compensation about Rs.20,00,000/- shall be given as ex-gratia to the families of the victims and petitioner No.1 along with other sympathisers, who are other petitioners, went away from the hospital after the dead bodies were handed-over to their respective family members.

(d) The petitioners claim that they were shocked to learn that a complaint was lodged by respondent No.2 - police officer, upon which, FIR was registered against them alleging that after the post-mortem of the dead bodies was conducted, one of the dead bodies viz., Mr. Tayyab was when sought to be handed-over to his family members by an ambulance at around 2.30 p.m., the petitioners formed into an unlawful assembly, intercepted the ambulance, obstructed the police personnel from discharging their duties for half-an-hour.

(e) The petitioners claim that respondent No.1 - the Station House Officer, Nandigama Police Station, Krishna District, without verifying whether the ingredients of the offences alleged in the complaint against them were made out or not, perfunctorily registered the FIR levelling the offences punishable under Sections 353, 341 and 143 read with Section 149 of IPC.

(f) According to the petitioners, false, baseless and concocted allegations have been made and registering of crime is perverse and constitutes an abuse of process of law that deserves to be quashed by this Court in exercise of inherent jurisdiction under Section 482 of the Code.

3. The petitioners have set out the following grounds: (a) The complaint is absolutely vague, ambiguous and does not bring out commission of any of the offences under Sections 341, 353 and 143 read with Section 149 of IPC and even if the allegations contained in the FIR are taken on face value and taken as correct, in their entirety, the same would not disclose commission of any offence under the above Sections.

(b) The petitioners, having extracted Section 353 of IPC, would state that to attract the offence punishable under Section 353 of IPC, the person accused of the offence should have assaulted the public servant from discharging his duty as a

public servant or criminal force is used by the accused to commit such an offence, but, there is absolutely nothing in the complaint to show that they either assaulted the respondents or used criminal force to prevent the respondents from discharging their official duties and taking the uncontroverted allegations, the ingredients of the offence punishable under Section 353 of IPC are not made out. (c) The petitioners, then referred to the definition of unlawful assembly under Section 141 of IPC and punishment for unlawful assembly under Section 143 of IPC extracted the provisions of Section 141 of IPC.

They state that on bare perusal of the complaint, there is no whisper of their using criminal force united in purpose of committing a criminal offence and the complaint does not allege that they formed into a group to commit an offence and, therefore, no offence punishable under Section 141 of IPC is made out. (d) The petitioners then referred to the definitions of wrongful restraint under Section 339 of IPC and the punishment provided therefor under Section 341 of IPC and would state that none of the ingredients of the offence punishable under Section 339 of IPC are made out.

(e) The petitioners also refer to FIR No.57 of 2017 registered against Sri Y.S. Jagan Mohan Reddy, alleging that on 28.02.2017 around 3.30 p.m., Sri Y.S. Jaganmohan Reddy entering into post-mortem room, obstructed the doctors and

other authorities in discharging their duties, whereas the FIR in the present case was registered alleging that after conducting the post-mortem examination and while transporting one of the dead bodies in an ambulance at around 2.30 p.m., they intercepted the way of the ambulance and obstructed the duties of the police personnel and annexed a copy of the FIR No.57 of 2017 to the petition. The petitioners, therefore, state that only to foist false cases against them as they are YSRCP sympathisers, at the behest of the ruling political party, the present FIR is registered to harass them.

(f) The allegations made in the FIR or complaint are vague, inherently improbable and based on the said allegations, no prudent person can reach a just conclusion that there are sufficient grounds for proceeding against them. They state that lodging of FIR and criminal investigation is a case of political vengeance against them with political malice and any action on the part of respondent No.2 against them would be an abuse of process of Court and the same would result in injustice and prevent promotion of justice. Stating that the complaint has been filed only as a measure of harassing for ulterior purpose and the complaint is designed to achieve the object not provided for by law, sought to interdict by exercise of inherent jurisdiction under Section 482 of the Code and to quash the FIR.

4. Heard Sri S. Sriram, learned counsel for the petitioners, and the learned Public Prosecutor for the State of Andhra Pradesh. Submissions:

5. The learned counsel for the petitioner places reliance in State of Haryana v. Bhajan Lal1, more particularly, the categories of cases stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code can be exercised by the High Court either to prevent abuse of process of any Court or otherwise to secure ends of justice though, it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power can be exercised, placing reliance on the seven (7) guidelines laid down by the Hon'ble Apex Court contained in paragraph Nos.102 and 103.

6. The learned counsel has also placed reliance in Narayanan v. State of Kerala2 in the context of explaining the definition of wrongful restraint in Section 339 of the Code. He has placed reliance in Rupan Deol Bajaj (Mrs) v. Kanwar Pal Singh Gill3 of the Hon'ble Supreme Court in the context as to when wrongful confinement punishable under Section 342 of IPC and wrongful restraint under Section 341 of IPC would attract, wherein Mr.Gill, the 1 1992 Supp (1) SCC 335

accused therein, stood in front of Mrs. Bajaj, in such a manner that she had to move backward, and, in that context, the Hon'ble Supreme Court held that from such act alone, it cannot be said that he "wrongfully restrained" within the meaning of Section 339 of IPC to make him liable under Section 341 of IPC.

7.

The learned counsel for the petitioners also would submit that the incidents mentioned in the present First Information Report i.e., Crime No.58 of 2017 of Nandigama Police Station, Krishna District and the First Information Report in other case i.e., Crime No.57 of 2017 of the very same Police Station are continuous and thus, the continuous cause of action would arise but deliberately different crime numbers are registered with political malice as the petitioners belong to YSRCP Party, playing role of the Opposition Party, and, therefore, to quash the First Information Report in Crime No.58 of 2017.

8.

The learned Public Prosecutor for the State of Andhra Pradesh would submit that whether the present incident is a continuous cause of action to the incident in First Information Report in Crime No.57 of 2017 or not can only be known in the investigation when the investigating officer collects evidences by recording the statements of witnesses under Section 161 of the Code. 2 1987 CrlLJ 741 3 1995 (6) SCC 194

9.

The learned Public Prosecutor would submit that by 2.30 p.m. itself postmortem of four of the dead bodies were already conducted and on the remaining dead bodies, the Doctors were conducting postmortem examination in the room and at that time the incident in Crime No.57 of 2017 has occurred. It is, therefore, his submission that there is no inherent improbability as sought to be viewed and it cannot be said that unless the incident in Crime No.57 of 2017 takes place earlier, taking place of the incident in this case does not arise.

10. The learned Public Prosecutor would also submit that if the allegations mentioned in the complaint are taken on their face value they do disclose commission of cognizable offences by the petitioners and it is not a case where abuse of process of Court can be viewed and it is a case where investigation requires to be done invariably. 11.

The learned Public Prosecutor also submits that the ingredients of the offences alleged against the petitioners are attracted, and, therefore, it cannot be said that no ingredients to attract the offences alleged against the petitioners are finding place in the complaint.

12.

To appreciate the submissions made by the learned counsel for the petitioners and the learned Public Prosecutor, it would be appropriate to refer to the allegations mentioned in the complaint.

13.

The complaint was lodged by the 2nd respondent Jameel Ahmed Mohammed, working as Assistant Sub-Inspector of Police266 in Penuganchiprolu Police Station at 2.30 p.m. on 28.2.2017. The incident alleged to have taken place on 28.2.2017 at 2.30 p.m. and the offences alleged against the petitioners are punishable under Sections 353, 341 and 143 of IPC read with Section 149 of IPC. 13.

The 2nd respondent mentions that the bus belonging to Diwakar Travels met with an accident by hitting the culvert near Mulapadu Crossroads on NH-65 while coming towards Hyderabad from Vijayawada, resulting in death of ten persons and the bodies of nine persons were brought to Government Area Hospital, Nandigama for conducting postmortem examination. The Sub-Inspector of Police, Tiruvur P.S. held panchanama on one Mohammed Tayyab's body and as directed by him at about 2.30 p.m., when the de facto complainant and other Police Constable-1267 - M. Raja Rao were shifting the dead body in an ambulance to hand it over to the relations of the deceased, the YSRCP leaders and party activists who are the petitioners herein having constituted an unlawful assembly, obstructed the ambulance while they were escorting it and thus, waylaid for half an hour by obstructing in discharge of their official duties and thereby requested to take action against the petitioners. 15.

The learned counsel for the petitioners has drawn attention to the provisions of Section 353 in an attempt to project that none of the ingredients would attract the said offence alleged as no

allegations are finding place to show the ingredients of offence punishable under Sections 353 of IPC. The main submission of the learned counsel for the petitioners is that there was neither 'assault' nor 'use of criminal force' even accepting the allegations in the complaint without admitting, and, therefore, the offence punishable under Section 353 of IPC would not attract.

16.

The learned Public Prosecutor for the State of Andhra Pradesh would strongly resist it contending that the crime is at investigation stage and the allegations mentioned in the compliant would attract the ingredients of offences alleged against the petitioners.

17.

On a perusal of the FIR, it is clear that the de facto complainant and the Police Constable were escorting the ambulance to hand over the dead body of Mohammed Tayyab to his relations and thus, they were discharging the official duty at the relevant time even according to the complaint allegations. As regards 'use of criminal force' or 'assault' to attract the offence punishable under Section 353 of IPC, section 349 of IPC deals with 'criminal force'. Section 351 dealing with 'assault' reads thus:

"351. Assault: whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault."

18.

What is required by the provisions of Section 351 of IPC is that any gesture or preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. Thus, though in popular parlance there can be no assault unless there is use of criminal force, but in its legal conception the act must fall short of the use of force to constitute the assault.

19.

In the present case, the complaint allegations would point out that the petitioners obstructed the de facto complainant and other Police Constable by stopping the ambulance for about half an hour. Thus, to constitute obstruction use of actual physical force is unnecessary and if there is sufficient indication that force would be used if the officer persists in executing the task he is commissioned to do, it would be sufficient to constitute obstruction. If it is shown that fight would ensure if the officer proceeds to execute his work, it would be obstruction.

20.

The allegations in the complaint prima facie would satisfy the present requirement. Therefore, it cannot be said that prima facie allegations to attract the offence punishable under Section 353 of IPC are conspicuously absent.

21.

Touching the offence punishable under Section 341 of IPC, Section 339 of IPC connotes as to what constitutes 'wrongful restraint'. Section 341 provides punishment for 'wrongful restraint'. 22.

The learned counsel for the petitioners places reliance in Rupan Deol Bajaj (Mrs) (3 supra), more particularly, paragraph-18 thus:

"18.

That brings us to the other offences, namely, under Sections 352, 341, 342 IPC. We need not however take notice of the offence under Section 352 IPC for the offence under Section 354 IPC includes the ingredients of the former. In other words, Section 352 IPC constitutes a minor offence in relation to the other. Regarding the offence of wrongful confinement punishable under Section 342 IPC there is not an iota of material in the FIR; and so far as the offence under Section 341 IPC is concerned, the only allegation relating to the same is that Mr Gill stood in front of Mrs Bajaj in such a manner that she had to move backward. From such act alone it cannot be said that he "wrongfully restrained" her within the meaning of Section 339 IPC to make him liable under Section 341 IPC."

23.

In the present case, as per the allegations in the complaint the ambulance was obstructed, which was intended to proceed in a direction in which it had to proceed. Certain decided cases would exemplify the same thus:

"In Emperor v. Lahanu Manaji (1926 Bom. 118), it was held by the Division Bench that-

"Although there is authority for the view that all that Sec. 339 protects is the obstruction of any person, and that it does not cover a case where he himself is free to proceed in a direction in which he has a right to proceed, but without any impediments (such as a cart that he may have with him, this view of personal obstruction must obviously have some limits.

"Where, therefore, there was an obstruction to the complainant's proceeding with his bullocks in a direction in which he had a right to proceed with his bullocks, an offence under Sec. 339 was committed. Approved in Hardeva v. Lachminarain (1953 Raj. L.W. 199) In Pipireddiguri Gopala v. N. Lakshmmi Reddi (A.I.R. 1947 Mad. 124), it was held that- "The voluntary obstruction of a cart in which a person is travelling amounts to wrongful restraint of the person who is in the vehicle. The fact that the person may be allowed to get down and then be left at liberty to proceed on his way unmolested is immaterial. If the person is prevented from proceeding at the moment of restraint the terms of Sec. 339 are satisfied and the offence of wrongful restraint is committed."

In Mangal Singh v. Emperor (A.I.R. 1941 Pat.

384), it was held that- "While complainant was proceeding on the road on a tumtum the accused stopped the tumtum and assaulted the complainant. In the course of this

occurrence the accused wrongfully stopped the complainant for about 15 minutes. The accused were, therefore, guilty under Sec. 341 inasmuch as by obstructing the tumtum they prevented the complainant from proceeding on his way."

24.

Therefore, it cannot be said that there are no prima facie allegations to attract the offences under Section 341 of IPC. 25.

Turning to the offence punishable under Section 143 of IPC read with Section 149 of IPC is concerned, it is clear from the complaint allegations that number of persons involved are more than five. So far as common object is concerned, unless investigation is completed by collecting evidences, it would be difficult to hold at this stage, just basing on the complaint that the complaint does not contain ingredients of the offence punishable under Section 143 of IPC. Therefore, it cannot be said at the threshold that there are no ingredients to attract the offences alleged against the petitioners. 26.

The decisions relied on by the learned counsel for the petitioners in Bhajan Lal (1 supra) and Narayanan (2 supra) would not render any assistance to accede to the submissions made by him at this stage.

27.

The other submissions, that the complaints in the present case and in Crime No.58 of 2017 are mutually inconsistent and therefore, the case projected by the complainants are inherently improbable, the alleged motive of false implication due to political

malice and the submissions to bring the complaint allegations within the fold of Section 95 of IPC can only be examined when the evidences are collected by the investigating agency. 28.

Therefore, it cannot be said that continuation of investigation would amount to the abuse of process of Court. 29.

Hence, the Criminal Petition is dismissed. However, the investigating agency is hereby directed to follow the procedure under Section 41-A of the Code and strictly adhere to the guidelines laid down by the Hon'ble Supreme Court in Arnesh Kumar v. State of Bihar4.

Further, the petitioners are at liberty to exercise their right, in case charge is laid, to avail the remedies available either under Section 482 of the Code or to file a discharge petition. As a sequel thereto, Miscellaneous Petitions, if any, pending in the Criminal Petition shall stand closed.

__________________________ A. SHANKAR NARAYANA, J Date:13-06-2017 PV/GBS 4 (2014) 8 SCC 273