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2019 DIGILAW 2653 (BOM)

Mahesh Sonu Gawade v. State Of Goa

2019-12-04

C.V.BHADANG, M.S.SONAK

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JUDGMENT C. V. Bhadang, J. - Rule, made returnable forthwith. The learned Public Prosecutor waives service on behalf of the respondent nos. 1 and 2 and Mr. Phadte, the learned Counsel, waives service on behalf of the respondent no.3. Heard finally with consent of the parties. 2. By this petition, under Article 226 of the Constitution of India read with Section 482 of Code of Criminal Procedure (Code, for short), the petitioner (accused no.A7), seeks quashing of FIR No.28/2017 dated 11.04.2017 registered with P.S. Valpoi and consequent prosecution in Criminal Case No.7/18 pending before the learned Judicial Magistrate First Class at Valpoi. In the aforesaid case, the petitioner along with 44 others are facing prosecution for the offence punishable under Sections 143, 341, 506(ii) read with Section 149 of the Indian Penal Code (IPC, for short). 3. The brief facts are that the petitioner and the co-accused including 23 women are residents of Village Sonshi, Sattari, which happens to be a small village. There are about 13 mining leases surrounding the said village which saw the influx of six mining companies. The residents of the village have been complaining about the mining operations and the consequent damage to the environment and the air, water and sound pollution resulting out of the mining activities and the transport of the mining ore, since long. According to the residents of the said village, despite a memorandum from Ministry of Environment and Forest (MoEF) banning the transport of the ore through village roads, the transport of the ore continues unabated in overloaded trucks at times not covered properly resulting into immense pollution in the village thereby adversely affecting the health of the residents. 4. The incident in question occurred on 11.04.2017. As per the complaint lodged by Mr. Vijay Mehta, the Mine Manager of M/s. Cosme Costa and Sons Gaval, Sonshi, the petitioner and the other co-accused at about 14.00 hours unlawfully blocked the main road near Queni Mine entrance, thereby resulting into stoppage of transportation of iron ore. It was also claimed that the petitioners who had gathered at the spot, threatened the drivers of the trucks with "dire consequences" if they do not stop the trucks plying on the route. It was also claimed that the petitioners who had gathered at the spot, threatened the drivers of the trucks with "dire consequences" if they do not stop the trucks plying on the route. It appears that the police staff comprising of ASI Tulsidas Dhuri and others including some lady police constables (LPCs) arrived at the spot and the petitioner and the co-accused were rounded up and were taken into custody. On the basis of the complaint lodged by Mr. Vijay Mehta, an offence at Crime No.28 of 2017 came to be registered against the petitioner and others, under the aforesaid sections and after investigation they have been chargesheeted. 5. According to the petitioners, they have been raising bonafide concerns and complaints against the mining operations and transport of the mining ore which is resulting into severe damage to the environment and also resulting into air, water and sound pollution and their complaints have gone un-redressed. It is contended that the petitioner and the other co-accused were only peacefully demonstrating at the spot and there was no blockade as such, nor any overact committed as the petitioner and the other co-accused peacefully courted their arrest in protest of the non-redressal of their genuine and bonafide concerns. 6. It is a matter of record that the petitioner and the other coaccused were in custody for about nine days before they were released on bail. According to the petitioner, the prosecution is attended with malafides and the prosecution witnesses are either not eye witnesses to the incident or they are witnesses connected with the mining companies or staff members of the contractors transporting the ore. It is thus contended that they are interested witnesses. It is submitted that since after the incident the entire mining operation in the State has been stopped as per the orders of the Hon''ble Supreme Court. It is submitted that the material prosecution witnesses namely the drivers of the various trucks might have moved out of the State and thus are unlikely to be available for being examined before the Magistrate thereby resulting into substantial delay in the disposal of the criminal case. It is submitted that in any event, the prosecution is attended with malafides and exfacie no cognisable offence is made as such, even if the allegations are taken at their face value. It is submitted that in any event, the prosecution is attended with malafides and exfacie no cognisable offence is made as such, even if the allegations are taken at their face value. It is submitted that the Supreme Court in the case of Anita Thakur and Ors. Vs. Government of Jammu and Kashmir and Ors., (2016) 15 SCC 525 , has acknowledged that there is a fundamental right to protest peacefully. It is submitted that any such peaceful protest cannot amount to any offence. 7. On behalf of the petitioner, reliance is placed on the decision of the Supreme Court in the case of State of Haryana and Ors. vs. Bhajan Lal and Ors., (1992) Supp1 SCC 335 , in order to submit that a clear case for quashing of the FIR and the prosecution is made out as the criminal proceeding is manifestly attended with malafides and/or is instituted with ulterior motive for wreaking vengeance. 8. Mr. Rivankar, the learned Public Prosecutor, in all fairness did not dispute that there is no overt act alleged against the petitioner or the co-accused of using criminal force or causing any injury to prosecution witnesses or damage to the property. He, therefore, submits that this Court may pass appropriate orders as may be deemed just and necessary. 9. Mr. Phadte, the learned Counsel for the third respondent, has also expressed no objection for quashing of the FIR and criminal case. The only submission is that there are certain allegations made against the respondent no.3 attributing motives to him which are disputed. 10. We have carefully considered the circumstances and the submissions made. The gravamen of the allegations against the petitioner and the co-accused are that they unlawfully blocked the main road near Queni Mine entrance resulting into stoppage of the transportation of the iron ore and, secondly, that they threatened the truck drivers with "dire consequences". Thus, prima facie, even going by the complaint and the statement of the material prosecution witnesses, we do not find that there is a case made out for offence punishable under Section 506(ii) which involves a threat to cause death or grievous hurt or to cause the destruction of any property within the meaning of Section 506(ii) of IPC. Thus, prima facie, even going by the complaint and the statement of the material prosecution witnesses, we do not find that there is a case made out for offence punishable under Section 506(ii) which involves a threat to cause death or grievous hurt or to cause the destruction of any property within the meaning of Section 506(ii) of IPC. As has rightly been submitted by the learned Counsel for the petitioner and which aspect has not been disputed on behalf of the state, that there is absolutely no overact attributed to the petitioner and the other co-accused of use of criminal force or of causing any injury or even attempt to cause any personal injury or destruction of property. The prosecution witnesses including the complainant Mr. Vijay Mehta, Mr. Pradeep Nagveshkar, Vishwajit Shirodkar and Devendra Parab are not eye witnesses to the incident. We have also gone through the statement of the driver Deepak Parab and Sandesh Naik and we find that all that the petitioners were attempting was to stage a peaceful protest and nothing else. A careful perusal of the statements shows that the petitioner and the other co-accused peacefully courted arrest without offering any resistence and were taken into custody by the police and were released after about nine days, on bail. 11. The Supreme Court in the case of Anita Thakur (supra) has, inter alia, held that holding of peaceful demonstration is a fundamental right. The following observations in para 12 of the judgment are apposite : "12. We can appreciate that holding peaceful demonstration in order to air their grievances and to see that their voice is heard in the relevant quarters is the right of the people. Such a right can be traced to the fundamental freedom that is guaranteed under Articles 19(1)(a), 19(1)(b) and 19(1)(c) of the Constitution. Article 19(1)(a) confers freedom of speech to the citizens of this country and, thus, this provision ensures that the petitioners could raise slogan, albeit in a peaceful and orderly manner, without using offensive language. Article 19(1)(b) confers the right to assemble and, thus, guarantees that all citizens have the right to assemble peacefully and without arms. Right to move freely given under Article 19(1)(d), again, ensures that the petitioners could take out peaceful march. Article 19(1)(b) confers the right to assemble and, thus, guarantees that all citizens have the right to assemble peacefully and without arms. Right to move freely given under Article 19(1)(d), again, ensures that the petitioners could take out peaceful march. The ''right to assemble'' is beautifully captured in an eloquent statement that "an unarmed, peaceful protest procession in the land of ''salt satyagraha'', fast-unto-death and ''do or die'' is no jural anathema". It hardly needs elaboration that a distinguishing feature of any democracy is the space offered for legitimate dissent. One cherished and valuable aspect of political life in India is a tradition to express grievances through direct action or peaceful protest. Organised, non-violent protest marches were a key weapon in the struggle for independence, and the right to peaceful protest is now recognised as a fundamental right in the Constitution." 12. We are satisfied that all that the petitioner and the other coaccused were doing was to peacefully demonstrate so that their grievances are heard and redressed by the appropriate authorities and the present case would fall in the first category as set out in para 102 of the judgment in the case of Bhajan Lal (supra) namely the allegations even if they are taken at their face value do not constitute an offence or make out a case against the accused. Apart from the extra ordinary jurisdiction available under Article 226 of the Constitution of India, Section 482 of the Code specifically empowers this Court to pass orders to prevent abuse of the process of any Court or to otherwise secure the ends of justice. We find that the exercise of such power is eminently necessary in this case. The learned Additional Public Prosecutor as well as the learned Counsel for the respondent no.3 have no objection for quashing of the FIR and the prosecution. 13. We have also considered as to whether we should stay content with quashing the FIR and the consequent prosecution qua petitioner only, for the technical reason that it is only the petitioner who has approached this Court or whether the entire prosecution has to be quashed. In our considered view, as all the other co-accused are similarly situated as that of the petitioner, no useful purpose would be served by quashing the FIR and the prosecution only as regards the petitioner is concerned. In our considered view, as all the other co-accused are similarly situated as that of the petitioner, no useful purpose would be served by quashing the FIR and the prosecution only as regards the petitioner is concerned. It is true that normally this Court would confine such relief to the accused who has approached the Court particularly when the role allegedly played by such accused who approaches the Court is distinguishable from the co-accused, which is not the case in the present prosecution. In that view of the matter, we are of the considered view that the entire prosecution needs to be quashed. 14. In the result, the petition is allowed in terms of prayer clause (a). FIR No.28/2017 dated 11.04.2017 along with the proceedings in Criminal Case bearing no.7 of 2018 pending before the Judicial Magistrate, First Class at Valpoi are hereby quashed and set aside. 15. Rule is made absolute in the aforesaid terms.