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2023 DIGILAW 425 (UTT)

Maruf Khan v. State of Uttarakhand

2023-07-26

RAVINDRA MAITHANI

body2023
JUDGMENT : The challenge in this petition is made to an order framing charge dated 16.09.2016, passed in Criminal Case No. 2672 of 2014, State vs. Balli Singh Cheema and others, by the court of Chief Judicial Magistrate, Rudrapur, District Udham Singh Nagar (for short, “the case”). The petitioners have been charged for the offences punishable under Sections 143, 145 and 188 IPC. Challenge has also been made to the judgment and order dated 13.09.2018, passed in the Criminal Revision No.247 of 2016, Ravindra Singh and another vs. State of Uttarakhand, by the court of 1st Additional Sessions Judge, District Udham Singh Nagar (for short, “the revision”). By this order, the order dated 16.09.2016, passed in the case has been upheld. 2. Heard learned counsel for the parties and perused the record. 3. The case is based on an FIR lodged against the petitioner and others on 21.04.2014 at Police Station Rudrapur, District Udham Singh Nagar. The FIR has been lodged by Senior Sub Inspector, Vikram Rathore. According to it, on the date of incident at about 09:00 PM, when the informant was on patrolling duty, he spotted some persons sitting on the ground on the mattresses outside the SSP Camp Office. The informant asked those persons, as to why were they sitting there? They revealed that a vehicle used in the election campaigning has been seized by the police a day before, but the Returning Officer has directed for release of the vehicle. The complaint of those persons was that the police, despite the order of the Returning Officer has not been releasing the vehicle. Thereafter, according to the FIR, the informant told it to these persons that the Challani Report under Section 207 of the Motor Vehicles Act, 1988 has already been given to the court of competent jurisdiction, therefore, the vehicle could only be released after the order from the Magistrate. Therefore, the informant directed those persons not to sit on dharna pradarshan, which is violation of Section 144 of the Code of Criminal Procedure, 1973 (for short, “the Code”). The FIR records that despite repeated warnings the persons sitting on dharna pradarshan did not leave that place. The petitioner is one of those persons, who were sitting on dharna at the relevant time. The FIR records that despite repeated warnings the persons sitting on dharna pradarshan did not leave that place. The petitioner is one of those persons, who were sitting on dharna at the relevant time. It is this FIR, in which, after an investigation charge-sheet was submitted, cognizance was taken and on 16.09.2016, charges were framed, which were unsuccessfully challenged in the revision. 4. Learned counsel for the petitioner would submit that the petitioner and the co-accused were simply on dharna, they were not committing any offence; they were not obstructing any person, they were raising their demand peacefully, therefore, it does not attract the provisions of Section 141 IPC. It is argued that there is no reason or ground to frame charge under Section 141 and 145 IPC. In so far as non-compliance of the directions of the police officers, issued under Section 144 of the Code are concerned, it is argued that cognizance for offence under Section 188 IPC can only be taken on a complaint filed by a public servant in view of Section 195 of the Code, but in the instant case, it is argued that an FIR was lodged, based on which finally charge under Section 188 IPC has been framed, which is illegal. 5. Learned State counsel would submit that the State has filed a counter affidavit enclosing therewith statements of some of the witnesses. The statements of witnesses post framing of charge cannot be seen in this proceeding. It may be noted that the proceedings of this case have already been stayed by this Court on 29.04.2019, when the petition was admitted. 6. At the time of hearing learned State counsel has read over the statement of informant, recorded during investigation. He would submit that the informant has just reiterated the version of the FIR in his statement under Section 161 of the Code. The statement, as recorded under Section 161 of the Code has been rendered by the learned State counsel at the time of hearing. They are taken on record. 7. Learned State counsel would submit that, in fact, the act of the petitioner falls under Section 141 IPC. The petitioner and the co-accused were resisting the execution of law. He would submit that the vehicle has already been seized by the police and the petitioner and the co-accused were demanding for its release. 8. They are taken on record. 7. Learned State counsel would submit that, in fact, the act of the petitioner falls under Section 141 IPC. The petitioner and the co-accused were resisting the execution of law. He would submit that the vehicle has already been seized by the police and the petitioner and the co-accused were demanding for its release. 8. The proposition of law qua Section 188 IPC may not detain this Court from hearing. Suffice it is to say that Section 195 of the Code provides that cognizance of an offence under Section 188 IPC cannot be taken except on a complaint in writing of such an officer whose order has been disobeyed. In the instant case, no complaint has been filed. Cognizance of the offence under Section 188 has been taken based on that FIR, it is per se illegal. Therefore, the charge under Section 188 IPC could not have been framed. On that point alone the petitioner deserves to be discharged of that offence. 9. In so far as charge under Sections 143 and 145 IPC are concerned, first and foremost it has to be seen as to what is an unlawful assembly. It is given under Section 141 IPC. It is as follows:- “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.” 10. It is not the case of the prosecution that the petitioner and the co-accused were engaged in any use of criminal force. The simple allegation is that at about 09:00 late in the evening, the informant spotted the petitioner and the co-accused sitting in a dharna by lighting candles in front of the camp office of the SSP. 11. The FIR itself records that it is the informant, who walked to the petitioner and the co-accused at the place where they were sitting on dharna. When the informant inquired, it is thereafter, the petitioner and the co-accused revealed that as to what they wanted. As stated, if it is an offence under Section 188 IPC, for that purpose a public servant could have filed a complaint; that has not been filed. For that reason, this Court has already held that there is no basis of framing charge under Section 188 IPC. The question is, whether the act of the petitioner and the co-accused attracts the provisions of Section 141 IPC? The answer is in NEGATIVE for the following reasons:- (i) The petitioner did not use any criminal force. (ii) The petitioner did not resist execution of any law or any legal process. The petitioner and the co-accused were simply sitting on dharna, they were not raising their voice, they did not stop the informant while he was moving in his Jeep. They did not come in the way of any law enforcement agency while discharging their duty; they did not raise any demand. (iii) The petitioner and the co-accused did not commit any mischief or criminal trespass or any other offence. 12. In fact, the petitioner and the co-accused were raising peaceful demand. By no stretch of imagination it can attract Section 141 IPC. Therefore, this Court concludes that the charge under Sections 141, 145 and 188 IPC, which are against the petitioner, are baseless and groundless. The petitioner ought to have been discharged of the offence punishable under Sections 143, 145 and 188 IPC. 13. In view of foregoing discussion, this Court is of the view that the petition deserves to be allowed. 14. The petition is allowed. 15. The petitioner is discharged of the offence under Sections 143, 145 and 188 IPC. It is stated that, the petitioner is on bail. 13. In view of foregoing discussion, this Court is of the view that the petition deserves to be allowed. 14. The petition is allowed. 15. The petitioner is discharged of the offence under Sections 143, 145 and 188 IPC. It is stated that, the petitioner is on bail. His bond stands cancelled and sureties are discharged of their liability.