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2009 DIGILAW 842 (KER)

Thekkepurayil Sumith v. State of Kerala

2009-09-08

K.HEMA

body2009
ORDER K.Hema, J, 1.This petition is to quash Annexure-I charge-sheet submitted by the police against the petitioners herein. A crime was registered as crime No. 56/2004 against the petitioners under Sections 143,147, 341 and 353 read with Section 149 of the IPC. 2.As per the charge-sheet Annexure-I, on 31/1/2004 at about 6 p.m. accused Nos. 1 to 27 formed into an unlawful assembly with a common object of obstructing the pick up van in which the waste is being brought and also CW 1 and others, who were the sanitary workers in the Municipality, and in prosecution of the common object, they wrongfully restrained CW 1 and others, and deterred them who are public servants from discharging their duty. 3.The learned counsel appearing for the petitioner submitted that offences under Section 353 and 341 will not lie since the ingredients of the offences are not made out from what is stated in the charge. Since such offences are not made out, offence under Section 143 also will not lie, it is submitted. First of all, to attract Section 353 of the Indian Penal Code, there must be allegation that the accused assaulted or used criminal force to a public servant. But, in this case, there is no whisper that any criminal force or assault was made against any public servant. 4. As far as offence under Section 341 of the IPC is concerned, a person, who wrongfully restrains another, will be liable for punishment under the said Section. Wrongful restraint is defined in Section 349 of the IPC. As per the said provision, to constitute wrongful restraint, there must be material to show that the person, who is obstructed, was prevented from proceeding in any direction in which he has the right to proceed. Therefore, the right of the victim to proceed in a particular direction must be alleged in the charge-sheet, it is submitted. According to the learned defence counsel, a writ petition was filed by the first petitioner herein, seeking certain directions against the Municipality, District Collector, Kerala State Pollution Control Board, Environmental Engineer, etc. He filed a petition as the Secretary of Janakeeya Parisara Raksha Samithi. 5. According to the petitioner. Payyannur Municipality started a plan called "Malinya Samskarana Kendram" in Moorikkoval for the purpose of disposal of solid waste collected from the entire Municipality. He filed a petition as the Secretary of Janakeeya Parisara Raksha Samithi. 5. According to the petitioner. Payyannur Municipality started a plan called "Malinya Samskarana Kendram" in Moorikkoval for the purpose of disposal of solid waste collected from the entire Municipality. But, the waste was being disposed of in such a manner which created environmental pollution. The waste was being dumped in a residential area which caused several difficulties to the persons who are residing in the locality. They were not even able to drink or breath unpolluted water or air. After hearing both sides, this Court found in the Judgment in the writ petition that the last date fixed for identification of landfill sides for future use was 31/12/2001 (vide paragraph 21 in Sumit v. Payyannur Municipality, 2004(1) KLT438. It was also observed by a Division Bench of this Court in that decision that setting up of waste processing and disposal facilities is to be completed by 31/12/2003. But, neither of these mandates were complied with by the Municipality, in spite of the direction issued by this Court in the above decision, it is submitted. 6.Learned counsel for the petitioners also brought to my notice that the second respondent was directed to take all necessary action for implementing provisions of the Act for the purpose of disposal of solid waste and, in particular, to see that the vermin compositing plant functions effectively and non biodeg ratable waste is segregated and sent as far as possible for recycling waste, which cannot be recycled, is to be removed to landfill sides fulfilling the requirements of law as expeditiously as possible. These directions were issued as early as on 04/09/2003. But, in spite of such directions, nothing was done by the Municipality and they continued to dumb the waste in Moorikoval. 7.A petition was, therefore, moved for taking action for contempt and it is still pending as COC No. 1421/03 before the Division Bench. In the light of the specific directions, the Municipality is not expected to continue with the illegal activities in disposal of the waste in violation of the directions issued. Therefore, in the absence of any averment in the charge that the persons, who are obstructed, have a right to proceed in a particular direction, offence under Section 341 of the IPC will not lie, it is argued. 8. Therefore, in the absence of any averment in the charge that the persons, who are obstructed, have a right to proceed in a particular direction, offence under Section 341 of the IPC will not lie, it is argued. 8. Learned Public Prosecutor argued that the Municipality has a duty to dispose of the waste and CW 1 and others were proceeding with the waste collected for the purpose of disposal of waste. Even if the Municipality is not complying with the directions issued as per the decision by this Court cited by the defence counsel, the petitioners have no right to obstruct any public, servant from doing his duty. If the charge is quashed, it will only be encouraging persons like petitioners in doing an illegal act by preventing the public servants from discharging their official duties, it is submitted. It is also argued that though directions are issued by this Court, no dates are fixed for compliance of the directions. Therefore, it cannot be said that there was any violation of this Court's order by the Municipality. 9. On hearing both sides and on perusal of the documents produced, firstly I find that there is no averment or even a whisper in the charge or in the statements of the witnesses, who are the alleged victims, that any criminal force was used against them or that they were assaulted. There is also no case that they were even touched by their body or pushed, so as to obstruct from their official duty. Criminal force is defined in Section 350 IPC. There is no case that the petitioners did anything which is likely to cause injury, fear or annoyance to the victims or that any injury, fear or annoyance was caused to the alleged victims, so as to attract Section 350 IPC. To attract offence under Section 353, using of criminal force to the public servant is an essential factor which is not made out from the charge-sheet. Therefore, the petitioners cannot be proceeded against under Section 353 IPC. 10. on going through the Judgment of the Division Bench of this Court reported in 2004 (1) KLT 438 , it would also appear that certain directions were issued to the Municipality relating to the manner in which the disposal of waste was to be managed. Therefore, the petitioners cannot be proceeded against under Section 353 IPC. 10. on going through the Judgment of the Division Bench of this Court reported in 2004 (1) KLT 438 , it would also appear that certain directions were issued to the Municipality relating to the manner in which the disposal of waste was to be managed. They were directed to act in accordance with law and the relevant specific provisions were also mentioned in the directions issued. A reading of paragraph 21 of the judgment would show that certain cut-off dates are fixed for'setting up of waste processing and disposal facilities etc. Therefore, a question arise whether the Municipality can proceed to dispose of the waste in the manner in which they were doing prior to the date of judgment in 2004 (1) KLT 438 in the light of the directions issued. 11. But, no investigation appears to have been made in these lines. Therefore, it is not clear whether the Municipality or the public servants working under them have the right or not to proceed to the plant, which is already functioning in Moorikoval, for the purpose of disposal of waste as done earlier to the date of Judgment. This is a case where investigation ought to have been made into the question whether the alleged victims had any right to proceed in the direction to which they were allegedly prevented from proceeding: In the light of the peculiar circumstances and facts, it was inevitable for the investigating officer to conduct an investigation into this fact, particularly since there was a Judgment against the Municipality by a Division Bench of this Court. It is needless to say that the prosecution must establish all the ingredients of an offence to find a person guilty of the said offence. 12. To attract an offence, there must be at least allegations which will constitute all the ingredients of the offence. It is an inevitable factor under Section 339 of the Indian Penal Code which defines wrongful restraint that the person, who is obstructed, has the right to proceed in a particular direction. But, in the charge-sheet, there is no whisper that the victims, who are alleged to be the public servants, had the right to proceed to the plant for the purpose of disposal of the waste. But, in the charge-sheet, there is no whisper that the victims, who are alleged to be the public servants, had the right to proceed to the plant for the purpose of disposal of the waste. In the absence of any allegation, the Court is not expected to presume that such person or persons had the right to proceed. 13. It is needless to say that the petitioners would not have obstructed CW 1 and others, if they were merely moving in any particular direction because they do not appear to have any personal motive against them. But, their objection appears to be in the disposal of waste in violation of the directions issued in a Judgment of this Court. In the above circumstances, offence under Section 341 of the IPC is also not disclosed from the charge, in the strict legal sense. As per the allegation, unlawful assembly is formed with the common object of committing certain offences under Sections 341 and 353 of the IPC. If such offence will not lie, the other offences under Sections 143 and 147 also will not lie. Therefore, I am satisfied that this is a fit case to quash the charge against the petitioners and I do so. 14.I make it clear that I do not mean to say that any act from the side of the petitioners in obstructing a public servant will ordinarily be justified. But, the question before me is whether the charge and the records reveal commission of the offence, as alleged against the petitioners. It is for the prosecution to establish the charge and it is not for the accused to justify their acts. If the prosecution fails to establish that the accused committed certain acts which will constitute offences, the prosecution should fail,. 15. In the result, (i) The charge-sheet (Annexure-I) filed against petitioners and all further proceedings initiated against them on the basis of the charge-sheet are hereby quashed. Petition is allowed.