Madhab Chandra Charchari v. Nalini Manna — 1963 DIGILAW 186 (CAL)

JUDGMENT 1. This Rule is directed against an appellate order of acquittal passed by the learned Assistant Sessions Judge of Midnapore acquitting the two opposite parties who had been convicted by the trial Magistrate of offence under section 341 of the Indian Penal Code and sentenced each of them to pay a fine of Rs. 25/- in default to suffer rigorous imprisonment for two weeks under that section. In the trial court there were five accused persons including the present opposite parties. The common charge against all of them was one under section 147 of the Indian Penal Code and also under section 341 of the Indian Penal Code. In addition to that charge, the opposite parties Nalini Manna and Kalipada Kulavi and another person named Sudhangsu Das had also been charged for an offence under section 323 of the Indian Penal code and another accused Monoranjan Kulavi was charged under section 426 of the Indian Penal Code. The learned Magistrate acquitted all the accused persons of the charge under section 147 of the Indian Penal Code. He also acquitted Sudhangsu Das, Nalini Manna and Kalipada Kulavi under section 323 of the Indian Penal Code and Monoranjan kulavi of the charge under section 426 of the Indian Penal Code, but he convicted Nalini Manna and kalipada Kulavi of the offence under section 341 of the Indian Penal Code. On appeal that conviction passed against Nalini Manna and Kalipada Kulavi has been set aside. Against that appellate order the de facto complainant Madhav Chandra Charchari moved this Court and the present Rule issued. 2. Prosecution case briefly is that on 21st of May, 1962 a motor-bus No. WGB 1414 that has been given a name "pusparath" was on its journey on Ghatal-Panskura route in the district of Midnapore with several passengers in it. Madhav Charchari P. W. I, was the conductor of that bus, Gunadhar Khamroy P. W. 3. was the helper of that bus, Gour Hari Bera P. W. 2 was the checker of the bus, and Niranjan Pramanik was the driver. The bus "pusparath" left Ghatal at 7-30 P. M. with several passengers in it besides the driver, conductor, helper and checker above-named. In course of the journey the bus reached a midway point in village goura at about 8-30 P. M. to drop some passengers of the bus and also to pick up some passengers at that station. The bus "pusparath" left Ghatal at 7-30 P. M. with several passengers in it besides the driver, conductor, helper and checker above-named. In course of the journey the bus reached a midway point in village goura at about 8-30 P. M. to drop some passengers of the bus and also to pick up some passengers at that station. The bus-stand at Goura is in front of a shop of which the accused Nalini Manna is the proprietor. While taking down some luggages from the top of the bus a bundle of Shal leaves accidentally fell on the conductor Madhav. Madhav expressed his annoyance by uttering some abuses against the helper Gunadhar who, Madhav thought, was responsible for dropping the Shal leaves, although it was the passenger to whom the Shal leaves belonged who had in fact been responsible for dropping the load of Shal leaves. That passenger thought that the abuses uttered by Madhav were directed to him and a quarrel ensued. In that quarrel accused Nalini Manna and Kalipada Kulavi and several other persons intervened and assaulted the conductor and the helper of the bus after restraining the bus with its passengers from proceeding towards its destination. Besides the accused persons some members of the public intervened at that stage and the bus started to move. When the bus had gone only a few yards the accused persons chased the bus in a motor-car and made the bus stop by obstructing its way by putting that motor-car in front of the bus and prevented it from proceeding on the way with the several passengers that were in it. Prosecution alleges that at this stage also the conductor was again assaulted and some damage was done to the bus itself by the accused persons. Only when the passengers in the bus showed their resentment at being wrongfully restrained that way from proceeding in the way they had a right to proceed, that the bus was allowed to continue its journey. The bus reached its destination at Ghatal that night and on the next day, that is, the 22nd of May, 1962 at 11 A. M. an information was lodged in the Daspur Police Station which is 7 miles south from the place of occurrence alleging therein all the details of the alleged incident and naming the accused persons by mention of the particular acts alleged against each of them. On these allegations the five accused persons were charged by the learned Magistrate as mentioned above. The charge under section 341 of the Indian Penal Code was framed in these terms: "that you on or about the same day at Goura P. S. Daspur wrongfully restrained bus No. 1414 (Pusparath) from proceeding from Goura towards its destination and thereby committed an offence punishable under section 341 of the Indian Penal Code. . . . " It may be mentioned that in the charge under section 147 of the Indian penal Code the common object was also mentioned as "restraining bus No. WGB 1414 (Pusparath)". 3. All the accused persons including the two opposite parties pleaded not guilty to all the charges. They did not deny that there was an incident at the time and place alleged by prosecution when this particular motor-bus was plying along Ghatal-Panskura route with several passengers in it. Defence contended that over the incident of Shal levies being dropped on the conductor, the passenger, who himself was taking down the Shal leaves, was abused in filthy terms that led to an altercation between the conductor on one side and the passengers of the bus on the other. Nalini Manna who is a rich businessman of some position and influence in that village Goura intervened to settle the matter. He asked the conductor to apologise to the passenger which the conductor did. When the bus started from Goura the conductor who had felt insulted at being compelled to apologise was uttering invectives against Nalini Manna. Some of the passengers in the bus who had boarded it at Goura took strong exception to such abuses being uttered against so respectable a person as Nalini Manna and there was apprehension of violent clash between those passengers and the conductor of the bus. At that stage, defence case proceeds, nalini Manna rushed with his taxi to save the conductor from further humiliation at the hands of the passengers. Defence denied not only the complicity of the accused persons in the offences alleged against them but also denied that there was any wrongful restraint committed by any one of them. 4. At that stage, defence case proceeds, nalini Manna rushed with his taxi to save the conductor from further humiliation at the hands of the passengers. Defence denied not only the complicity of the accused persons in the offences alleged against them but also denied that there was any wrongful restraint committed by any one of them. 4. The defence taken and also the cross-examination of the prosecution witnesses and examination of defence witnesses at the trial make it abundantly clear that the charge under section 341 of the Indian Penal Code was clearly understood to be a charge of wrongful restraint of the human beings who were passengers in the bus and there was no confusion or difficulty in understanding the real import of that charge, although in its frame it had been said that they had "wrongfully restrained the bus". In fact in the trial court no point was at all taken on behalf of the accused persons that he had been misled by any defect in the charge as framed. The learned Magistrate believed the prosecution version of the incident and disbelieved the defence version of it upon full consideration of the evidence in the case led by the prosecution and by defence. The learned Magistrate found that there was no case established against the accused Monorani an and also in view of the defence evidence gave accused Sudhangsu and accused Kali Samanta benefit of doubt in respect of charges under sections 147, 341. 426 and 323 of the Indian Penal Code and acquitted them of those charges. As a consequence of that finding the learned Magistrate also held that the charge under section 147 must also fail against the other two accused persons Nalini Manna and Kalipada Kulavi because, although there was evidence that 10/12 persons had gathered at the place of the incident, there was no evidence that those other persons had participated in the common object of the rioting charge. The learned magistrate also held that the charge under section 323 of the Indian Penal Code against the accused Nalini Manna could not be said to have been established because the conductor P. W. 1. to whom the hurt was said to have been caused had no injury on his person. The learned magistrate also held that the charge under section 323 of the Indian Penal Code against the accused Nalini Manna could not be said to have been established because the conductor P. W. 1. to whom the hurt was said to have been caused had no injury on his person. Accused Nalini and Kalipada were, therefore, acquitted of the charge under section 147 and 323 of the Indian Penal Code against them but on the charge under section 341 of the Indian Penal Code the learned magistrate held that the argument that section 341 of the Indian Penal Code envisages restraining of a person and not of an inanimate object had no force in it. The learned Magistrate expressed himself in these words "about the first argument, it can be said that the bus is meant to convey passengers. The driver of the bus has the duty to reach the passengers to a certain destination over a certain route. That is to say, he has the right to proceed in a certain direction with the bus. Right to proceed does not necessarily mean the right to proceed only on foot as envisaged by section 341 I. P. C. And so if the bus is restrained to proceed in the direction in which the driver and the other occupants of the bus have the right to proceed, an offence under sec. 341 I. P. C. has been committed within the meaning of the section. " Regarding the other argument that there was not a single legal witness to prove that the passengers were restrained the learned Magistrate on consideration of the evidence on the side of prosecution as also of the defence and the circumstances established by that evidence held that "the accused Nalini and Kali Kulavi did not allow the bus to proceed till the conductor at least apologised to Madhav. " 5. In saying so the learned Magistrate obviously meant the apology that the conductor Madhab was made to tender to the passenger Subal Chandra Patra D. W. 2. This is obviously a clerical error and has not at all affected either the merit of the case or the value of the finding of the learned Magistrate. " 5. In saying so the learned Magistrate obviously meant the apology that the conductor Madhab was made to tender to the passenger Subal Chandra Patra D. W. 2. This is obviously a clerical error and has not at all affected either the merit of the case or the value of the finding of the learned Magistrate. Upon that finding the learned Magistrate convicted the accused Nalini Manna and Kalipada Kulavi with the offence under section 341 of the Indian Penal Code and imposed and sentenced to pay a fine of Rs. 25/- in default to rigorous imprisonment for two weeks against each of them. 6. An appeal was preferred by the two convicted persons and the learned Assistant Sessions Judge who heard the appeal has not disturbed any of the findings of the facts arrived at by the learned Magistrate; but the learned Assistant Sessions Judge held that in so far the charge framed said that the bus was restrained from proceeding. "the very charge is defective which is likely to cause prejudice to the accused persons and the accrued persons are to get benefit on account of this defect in the charge causing prejudice to them. " In holding so the learned appellate court also held: "the learned Magistrate also in his findings states that the accused persons did not allow the bus to proceed and thus has brought the offence under section 341 I. P. C. This finding is also not according to law as restraining a motor-bus from proceeding is not restraining a person from proceeding as is stipulated in the law. Therefore the finding of the learned Magistrate cannot also be sustained. " 7. The learned appellate court also held that "there was an altercation between the bus personnel and the accused persons and there are charges of assault, rioting etc. The facts appearing in evidence do not show that there was any wrongful restraint of even the bus personnel, as such it can attract the provisions of section 341 I. P. C. in this case. " he accordingly held that no case under section 341 of the Indian Penal Code has been made out against the accused persons and consequently he set aside the order of conviction and sentence passed by the learned Magistrate and acquitted the accused persons. 8. Appearing in support of the Rule against that appellate order Mr. " he accordingly held that no case under section 341 of the Indian Penal Code has been made out against the accused persons and consequently he set aside the order of conviction and sentence passed by the learned Magistrate and acquitted the accused persons. 8. Appearing in support of the Rule against that appellate order Mr. Anil Sen has contended that every one of the three propositions of law that has impelled the learned Assistant Sessions Judge to hold that an offence under section 341 of the Indian Penal Code is erroneous. Mr. Sen contends that although the language in the frame of the charge could have been more explicit, there has been no defect at all in the charge as framed because its true implication was clearly understood and the accused persons have neither been misled nor been prejudiced in making their defence. No complaint was made regarding any defect in the charge in the trial court. In such circumstances even if it could be thought that there was some defect in the language so as to constitute an error, that alone will not entail setting aside the order of conviction upon a mere likelihood of prejudice as the learned Assistant Sessions Judge seems to have thought. Mr. Sen points to section 537 clause (b) that provides that no finding, sentence or order shall be reversed on account of any error, omission or irregularity in the charge unless such error has in fact occasioned failure of justice. The learned Advocate Mr. Ghorai who has appeared to oppose the Rule on behalf of the opposite parties has pleaded to defend the order of acquittal not on the ground of any defect in charge alone, but he has urged what is really the second reason of the learned Assistant Sessions Judge that restraining a motor-bus from proceeding is not restraining a person from proceeding as is stipulated in section 339 of the Indian Penal Code. Section 339 of the Indian Penal Code in defining wrongful restraint says, "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 to wrongfully restrain that person. " For the petitioner Mr. Section 339 of the Indian Penal Code in defining wrongful restraint says, "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 to wrongfully restrain that person. " For the petitioner Mr. Sen has can-tended that when a person is going in a vehicle obstruction of that vehicle in which the person is traveling would amount to wrongful restraint of the person in the vehicle and it would not be an answer to a charge under section 341 of the Indian Penal Code in such circumstances to say that the person or persons may get down from the vehicle and then be left at liberty to proceed on their way unrestrained. On this point Mr. Sen has relied on a Bench decision of this Court reported in 39 C. W. N. 396 (Mahendra Nath Chakravarty and anr. v. The Emperor) (1) and also on a decision of the Patna High Court reported in A. I. R. 1948 Pat. 299 (Chiranji Lall and Another v. Durga Dutt Tripathi) (2) and another decision of the Madras High Court reported in A. I. R. 1947 Madras 124 (Piprroddigari Gopala Reddi and another v. N. Lakshmi Reddi) (3). Mr. Sen in his fairness has also pointed out that in the Madras decision last mentioned another decision of this Court in the case of (Durgapada Chatterjee and another v. Nilmony Ghose) (4) reported in A. I. R. 1935 Cal. 252, S. C. 39 C. W. N. 143, was referred to and dissented from tending to show some divergence of view point. Mr. Ghorai has relied on that decision in support of his contention. Mr. Sen contends that the seeming divergence is not real at all. It is true that in the case of (Durgapada Chatterjee and anr. v. Nilmony Ghose) (4) reported in A. I. R. 1935 Cal. 252, S. C. 39 C. W. N. 143, Patterson, J. sitting singly held "having regard to the wording of the definition of the offence of wrongful restraint it is clear that the voluntary obstruction of a vehicle cannot be held to amount to wrongful restraint within the meaning of section 339 I. P. C. " 9. 252, S. C. 39 C. W. N. 143, Patterson, J. sitting singly held "having regard to the wording of the definition of the offence of wrongful restraint it is clear that the voluntary obstruction of a vehicle cannot be held to amount to wrongful restraint within the meaning of section 339 I. P. C. " 9. But an examination of the facts of that case reveals that it was a case where the carts carrying the paddy purchased from the complainant had been prevented from proceeding along the public road by the accused persons, their object being to compel the payment to their master the landlord of their village of certain so-called dues known as weigh mans dues. It was not the case there that any person was riding in that cart that was carrying paddy. That is why Patterson, J in his judgment pointed out that there was no evidence on the record from which it might be inferred that purchaser or seller of paddy or the carters "were themselves prevented from proceeding along the public road or where ever else they might have wished to go and this being so it is clear that the conviction under section 341 of the Indian Penal Code must be set aside. " That aspect of the case does not appear to have been noticed by Happell, J. of the Madras High Court when his Lordship in his judgment in the case of (Piprroddigari Gopala Reddi and another v. N. Lakshmi reddi) (3) reported in A. I. R. 1947 Madras 124 said, "with respect to the learned Judge who decided A. I. R. 1935 Cal. 252 referred to above I am unable to see why the voluntary obstruction of a vehicle in which persons were travelling should not amount to the wrongful restraint of the persons in the vehicle. The fact that the person or persons may get down and they be left at liberty to proceed on their way unmolested seems to me immaterial. " 10. In the case reported in A.I.R. 1948 Patna 299 (Chiranji Lall and another v. Durga Dutt Tripathi) (2) Mr. The fact that the person or persons may get down and they be left at liberty to proceed on their way unmolested seems to me immaterial. " 10. In the case reported in A.I.R. 1948 Patna 299 (Chiranji Lall and another v. Durga Dutt Tripathi) (2) Mr. Justice S. K. Das, J. then sitting singly on the Bench of the Patna High Court held that preventing a person from proceeding homeward on an 'ekka' would amount to prevent him from proceeding in the direction in which he wanted to proceed and would, therefore, be wrongful restraint as denned in section 399 of the Penal Code. In the case of (Mahendra Nath v. The Emperor) (1) reported in 39 C. W. N. 396 before a Division of this Court (S. K. Ghose and Henderson, JJ.) Mr. Pugh appearing for the petitioner in that case raised an argument that a child of tender age cannot be the subject of wrongful confinement as defined in sections 339 and 340 of the Indian Penal Code and that argument was repelled by the Division Bench. S. K. Ghose, J. in his judgment said, "nevertheless the argument does not seem to me to be sound, because it presupposes that the word 'proceed' in sections 339 and 340 is confined to the case of a person who can walk on his own legs or can move by physical means within his own power. The position becomes absurd when we consider the case of a paralytic or a sick person who on account of his sickness cannot move. Can it be said that such a person may never be the person of wrongful confinement? surely the word 'proceeding' in section 340 includes the case of proceeding by outside agency which, in the case of a baby, must mean the agency of its natural protector or guardian. " 11. This statement of law is clear and unambiguous and being of a Division bench it is entitled to high respect and is binding on me sitting singly. I have no hesitation in respectfully following that decision. As pointed out by their Lordships, any other interpretation leads to patent absurdities. More so when viewed in the background of realities of modern life when journeys are often by motor vehicles. I have no hesitation in respectfully following that decision. As pointed out by their Lordships, any other interpretation leads to patent absurdities. More so when viewed in the background of realities of modern life when journeys are often by motor vehicles. To contemplate that when a person driving in a motor vehicle along a high way is stopped and prevented from moving forward would not be said to have been wrongfully restrained if he is asked to get down from the vehicle and left free to move on his foot would, in my view, take away a very large part of the content and meaning of the word "proceed" occurring in the definition in section 339 of the Indian Penal Code. That word cannot be given the limited meaning of proceed on foot only. 12. I may observe that the learned Assistant Sessions Judge has either misunderstood or has failed to give effect to the full implication of the finding of the learned Magistrate (which I have quoted above, and which finding the learned Assistant Sessions Judge has not disturbed) that the bus was carrying passengers and the driver of the bus had the duty to reach the passengers to their destination. On the facts of the present case and upon the findings arrived at which are based on clear evidence on the record I am clearly of the view that the acts of which the two opposite parties have been found to have been reasonable did amount to wrongful restraint of the passengers as also the crew of the bus within the definition in section 339, of the Indian Penal Code. The only other reason of the learned assistant Sessions Judge for setting aside the order of conviction passed in the trial court is that in his view the element of 'wrongful' was wanting, because the restraint had followed an altercation and assault. It is not easy to understand what the learned Assistant Sessions Judge really meant by it. If he meant that the obstruction to the bus moving along the road was because of the assault and riot that had been alleged by prosecution, then instead of taking away the element of 'wrongful' those features loudly emphasise that the restraint was very much wrongful. If he meant that the obstruction to the bus moving along the road was because of the assault and riot that had been alleged by prosecution, then instead of taking away the element of 'wrongful' those features loudly emphasise that the restraint was very much wrongful. By the definition in section 339 of the Indian Penal Code it is the voluntary obstruction that constitutes wrongful restraint and even when one looks to the Exception in that section it does not stand to reason that a person obstructing another so that that another may be assaulted can be said to believe in good faith to have a lawful right to obstruct. The learned Assistant sessions Judge is clearly in error on this point. 13. Mr. Ghorai has referred to sections 83 to 87 of the Motor Vehicles Act, 1939 for arguing that in certain circumstances a motor vehicle can and must be stopped. For this argument of Mr. Ghorai, sections 83 to 86 of the Motor Vehicles Act, 1939 do not appear to be relevant at all. Section 87 of that Act enjoins a duty on the driver to stop the motor vehicle in certain cases. Not only none of the clauses (a), (b) and (c) of that section has any application to the facts of the present case but also in the case before us it was the driver who was stopped and it is not a case of the driver stopping the bus in performance of the duty enjoined by section 87. Mr. Ghorai's contention has, therefore, no leg to stand upon. 14. I, therefore, hold that each of the reasons given by the learned Assistant Sessions Judge for setting aside the order of conviction and sentence passed by the learned Magistrate must be held to be based on errors of law and imperfect application of evidence and findings of the learned Magistrate. The order of acquittal passed by the learned appellate court need have to be set aside and the appeal directed to be reheard if that order could be held to have resulted in grave failure of justice. The order of acquittal passed by the learned appellate court need have to be set aside and the appeal directed to be reheard if that order could be held to have resulted in grave failure of justice. It is true that the two respondents had been rightly found by the Magistrate guilty of high-handed criminal acts resulting in wrongful restraint of a large number of persons in a public vehicle on a high road and they have been acquitted by the order of the learned Assistant Sessions Judge on errors of law. But an order of acquittal cannot be set aside merely because it is based on error of law unless grave failure of public justice has been occasioned by such order of acquittal. In the present case though the two respondents who were guilty persons have escaped legal punishment, the offence was only under section 341 of the Indian Penal Code which was committed not for any personal gain or interest of the accused persons but only as busy-bodies who meddled in other man's affair without any justification. The inconveniences occasioned to the passengers in the bus was not intended by the two respondents though the act was done Voluntarily' as defined in section 339 of the Indian Penal Code. Upon examination of the evidence in the case and in consideration of all the facts and circumstances established thereby I am inclined to think that though the order of acquittal has been illegal and erroneous, it has not occasioned such failure of justice as would require it to be set aside in exercise of revisional powers of this Court. The Rule is, therefore, discharged.