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2025 DIGILAW 960 (TS)

Palwai Harish Babu v. State of Telangana

2025-09-02

K.LAKSHMAN

body2025
ORDER : K. LAKSHMAN, J. Heard Mr. Bommineni Vivekananda, learned counsel for the petitioner - accused No.1 and Mr. Syed Yasar Mamoon, learned Additional Public Prosecutor appearing on behalf of the respondents. 2. This Criminal Petition is filed under Section - 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘ BNSS ’), to quash the proceedings in C.C. No.498 of 2024 pending on the file of the Special Judicial Magistrate of First Class for trial of Cases relating to MP’s and MLA’s - cum - Special Judicial Magistrate of First Class for Cases under Prohibition Act (Excise Court), Hyderabad. 3. The petitioner herein is arraigned as accused No.1 in the aforesaid C.C. The offences alleged against him are under Sections - 147, 188 and 341 read with 149 of IPC. 4. On the complaint dated 05.07.2018 lodged by respondent No.2 - Inspector of Police, Kaghaznagar Town Police Station, Kaghaznagar Town Police Station have registered a case in Crime No.127 of 2018 against the petitioner herein and others for the aforesaid offences. 5. In the complaint, the allegations levelled against the petitioner herein and others are that on 05.07.2018 at 2.00 P.M., while he was conducting Town Patrolling duty, it was noticed that the petitioner herein being Independent MLA contesting candidate from Sirpur Assembly Constituency took bike rally with his followers from Prajalife Care Hospital to Praja Karyalayam near SPM Gate, Kaghaznagar. At 2.30 P.M., they gathered illegally and obstructed the way and restrained the general public by violating orders of Government Servant while Section - 30 of the POLICE ACT is in force in Kumuram Bheem - Asifabad District, to maintain Public Order, and thereby they committed the aforesaid offences. 6. After receipt of the aforesaid report, the Police, Kaghaznagar Town Police Station, registered the aforesaid crime. 7. During the course of investigation, the Investigating Officer recorded the statements of police constables of the said police station as LWs.1 and 2, who said to be the eye-witnesses to the aforesaid incident and so also LWs.3 and 4. LWs.5 and 6 are panch witnesses. LW.7 is not only the complainant, but also the Investigating Officer of the aforesaid crime. 8. Learned counsel for the petitioner would contend that the complaint dated 05.07.2018 lodged by respondent No.2 and the statements of LWs.1 to 4 lack the ingredients of the aforesaid offences. LWs.5 and 6 are panch witnesses. LW.7 is not only the complainant, but also the Investigating Officer of the aforesaid crime. 8. Learned counsel for the petitioner would contend that the complaint dated 05.07.2018 lodged by respondent No.2 and the statements of LWs.1 to 4 lack the ingredients of the aforesaid offences. LWs.2 and 3 are interested witnesses as they are police constables of the very same police station and, therefore, their statements cannot be taken into consideration. The Investigating Officer did not examine any person who faced traffic disturbance said to have caused on account of rally conducted by the petitioner and other accused. The Investigating Officer laid the charge sheet in a routine manner. In this case, the complaint given by the Complainant himself is the Investigating Officer. Thus, the proceedings in the aforesaid C.C. cannot go on. 9. Whereas, learned Additional Public Prosecutor would submit that on account of the rally conducted by the petitioner and others, traffic disturbance was caused. The statements of LWs.1 to 4 attract the aforesaid offences and so also the contents of the complaint. LWs.3 and 4 are not interested witnesses and they are independent witnesses. The Investigating Officer having considered all the said aspects during the course of investigation laid the charge sheet against the petitioner and other accused. There is no error in it. 10. LWs.1 and 2, police constables of the very same police station reiterated the contents of the complaint lodged by respondent No.2. LW.3 and 4 also said to be eye witnesses to the incident spoke on the same lines as spoken by LWs.1 and 2. 11. In the light of the above, it is relevant to note that Section - 188 of IPC deals with ‘disobedience to order duly promulgated by public servant’ and the same is extracted as under: “188. LW.3 and 4 also said to be eye witnesses to the incident spoke on the same lines as spoken by LWs.1 and 2. 11. In the light of the above, it is relevant to note that Section - 188 of IPC deals with ‘disobedience to order duly promulgated by public servant’ and the same is extracted as under: “188. Disobedience to order duly promulgated by public servant .—Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation. —It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. Illustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section.” 12. Section - 146 of IPC deals with ‘rioting”. The same is extracted as under: “146. Rioting.— Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.” 13. Section - 147 of IPC deals with ‘punishment for rioting’. The same is extracted as under: “ 147. Rioting.— Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.” 13. Section - 147 of IPC deals with ‘punishment for rioting’. The same is extracted as under: “ 147. Punishment for rioting .— Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 14. Section - 340 of IPC deals with ‘wrongful confinement”. The same is extracted as under: “ 340.Wrongful confinement .- whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said “wrongfully to confine" that person." 15. Section - 341 of IPC deals with ‘punishment for wrongful restraint’. The same is extracted as under: “ 341. Punishment for wrongful restraint .— Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.” 16. Section - 141 of IPC deals with ‘unlawful assembly’ and the same is extracted as under: “141. Punishment for wrongful restraint .— Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.” 16. Section - 141 of IPC deals with ‘unlawful assembly’ and the same is extracted as under: “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- (1) To overawe by criminal force, or show of criminal force, 1the 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 (2) To resist the execution of any law, or of any legal process; or (3) To commit any mischief or criminal trespass, or other offence; or (4) 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 (5) 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.” 17. Section - 149 of IPC deals with ‘every member of unlawful assembly guilty of offence committed in prosecution of common object’. The same is extracted as under: “ 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object. — If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.” 18. In view of the above, as far as offence under Section - 188 of IPC is concerned, it is also apt to note that in N.T. Rama Rao v. The State of A.P., rep. by Public Prosecutor , [Criminal Petition No.5323 of 2009, decided on 17.09.2009] while dealing with the offences under Sections - 188 and 283 of IPC, learned Single Judge held as under: “5) Even if the allegation that the petitioner conducted public meetings at three road junctions contrary to the permission accorded for conducting of a public meeting only at one specified place is true, such a direction under Section 30 of the POLICE ACT , 1861 could have been given only by the Superintendent or the Assistant Superintendent of Police of the District but not by any of their subordinates. If such a permission is granted under Section 30 of the POLICE ACT , 1861 and is violated, Section 195 (1) (a) of Code of Criminal Procedure mandates that the complaint in this regard has to be made by the public servant concerned or some other person to whom such a public servant is administratively subordinate to enable any Court to take cognizance of an offence under Section 188 of Code of Criminal Procedure. In the present case, the charge sheet was filed by the Sub Inspector of Police, who could not have been the authority to grant permission for the public meeting and therefore, the complaint/charge sheet is in violation of the mandatory provision of Section 195(1)(a) of Code of Criminal Procedure. 6) That apart, the offence alleged to have been committed under Section 283 of the INDIAN PENAL CODE by the petitioners and others is obviously in consequence to the alleged offence under Section 188 of INDIAN PENAL CODE and is not an independent of the same. Even otherwise, the conduct of public meeting at three road junctions or obstruction to the traffic could not have been considered as causing any danger or injury to any person. In so far as the obstruction in any public way is concerned, which can also be covered by Section 283 of the INDIAN PENAL CODE , the charge sheet cites only one witness to speak about the traffic jam caused by the road show. In so far as the obstruction in any public way is concerned, which can also be covered by Section 283 of the INDIAN PENAL CODE , the charge sheet cites only one witness to speak about the traffic jam caused by the road show. But, when the conduct of the public meeting at least at one place has been permitted and if the gathering for that public meeting resulted in any inconvenience by way of obstructing the traffic, the same cannot be considered to be with necessary guilty mens rea to construe the existence of an offence punishable under INDIAN PENAL CODE . Under the circumstances, none of the offences alleged can be said to have any reasonable basis and in any view, the complaint/charge sheet being in violation of Section 195 (1) (a) of Code of Criminal Procedure, has to fail. 7) As the complaint has failed due to its un- sustainability, the proceedings in their entirety have to fail, though the 1st accused alone approached this Court by way of this Criminal Petition.” 19. In Thota Chandra Sekhar v. The State of Andhra Pradesh, through S.H.O., P.S. Eluru Rural, West Godavari District , [Criminal Petition No.15248 of 2016, decided on 26.10.2016] relying on various judgments including N.T. Rama Rao and the guidelines laid down by the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal , [(1992) Supp. 1 SCC 335] , more particularly, guideline No.6, which says that where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious remedy to redress the grievance of the party, a learned Single Judge of High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh quashed the proceedings in the said C.C. by exercising power under Section - 482 of Cr.P.C. It further held that the proceedings shall not be continued due to technical defect of obtaining prior permission under Section - 155 (2) of Cr.P.C. and taking cognizance on the complaint filed by V.R.O. and it is against the purport of Section - 195 (1) (a) of Cr.P.C. 20. In view of the above discussion, the Investigating Officer did not follow the procedure laid down under Section - 155 of Cr.P.C. Further, contents of charge sheet including statements of LWs.1 to 4 lack the ingredients of Section - 188 of IPC. Therefore, the proceedings in the said C.C. for the offence under Section - 188 of IPC are liable to be quashed against the petitioner herein. 21. As far as other offences are concerned viz., Sections -147 and 341 read with 149 of IPC, the definitions of which are extracted above. To constitute an offence under Section - 147 of IPC, the essential ingredients are; there must be an unlawful assembly as defined under Section - 141 of IPC consists of a minimum five persons; the members of such assembly must have a common object; such unlawful assembly must use force or violence and they must have been an active participation in the riot. 22. As far as offence under Section - 341 of IPC is concerned, the essential ingredients are that there must be an act of voluntarily obstructing a person; such obstruction prevents the person from proceeding in any direction in which they have a right to proceed; and the act of restraint must be without lawful justification or authority. 23. With regard to the offence under section -149 of IPC is concerned, the essential ingredients are that there must be an unlawful assembly of five or more persons and such offence must be committed in prosecution of common object of unlawful assembly and accused must be a member of such unlawful assembly at the time of offence committed. 24. In view of the above, now coming to the case on hand, as discussed above, in the complaint dated 05.07.2018 itself, it is alleged by the complainant that the petitioner herein along with accused Nos.2 to 5 and his followers took a bike rally without any prior permission, gathered illegally and obstructed the way restraining the general public. Even LWs.1 to 4 spoke on the same lines. Prima facie, the contents of complaint and charge sheet go to show the aforesaid ingredients. However, whether the petitioner herein was part of such unlawful assembly; that he had a common object and that any force or restraint was used etc, are all disputed facts and they can only be considered by the trial Court on conducting trial. Prima facie, the contents of complaint and charge sheet go to show the aforesaid ingredients. However, whether the petitioner herein was part of such unlawful assembly; that he had a common object and that any force or restraint was used etc, are all disputed facts and they can only be considered by the trial Court on conducting trial. The petitioner has to face trial. Thus, the petitioner herein is not entitled to seek quashment of proceedings for the aforesaid offences. 25. In view of the aforesaid discussion and the principle laid down in the aforesaid decision, the present Criminal Petition is allowed in part and the proceedings in C.C. No.498 of 2024 pending on the file of the Special Judicial Magistrate of First Class for trial of Cases relating to MP’s and MLA’s - cum - Special Judicial Magistrate of First Class for Cases under Prohibition Act (Excise Court), Hyderabad, are hereby quashed against the petitioner - accused No.1 alone insofar as the offence under Section - 188 of IPC is concerned. However, the petitioner herein - accused No.1 shall face trial for the offences under Sections - 147 and 341 read with 149 of IPC. As a sequel thereto, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.