Hariprasad s/o Mohanakumaran Nair and Selvadas s/o Baladas v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 21ST DAY OF OCTOBER 2016/29TH ASWINA, 1938 Crl.MC.No. 1163 of 2013 ------------------------[AGAINST THE ORDER IN CC 295/2012 of J.M.F.C.-I,THIRUVANANTHAPURAM] PETITIONERS(S)/ACCUSED 1 AND 2: ----------------------------- 1. HARIPRASAD S/O.MOHANAKUMARAN NAIR, PUTHENVILA HOUSE, AMBADI NAGAR, NEAR ENGINEERING COLLEGE, SREEKARIYAM, THIRUVANANTHAPURAM. 2. SELVADAS, S/O.BALADAS, KALLUVILA BLESSINGS, NEAR KARIYAM MARKET, CHELLAMANGALAM, THIRUVANANTHAPURAM. BY ADV. SRI.K.P.SUJESH KUMAR RESPONDENT(S)/STATE: -------------------1. STATE OF KERALA REP. BY PULIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. ADDL.R2. MATHEWKUTTY JOSEPH, HCT 8692, TRIVANDRUM CITY CONTROL ROOM VEHICLE 14 (CRV-14), THIRUVANANTHAPURAM IS IMPLEADED AS PER ORDER DATED 20.3.2014 IN CRL.M.A. N0.2150/2014. R1 BY SR.PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## MARY JOSEPH, J. ---------------------------------------Crl.M.C. No.1163 of 2013 'CR' ----------------------------------------Dated this the 21[st] day of October, 2016 ## ORDER Petitioners are accused Nos.1 and 2 in C.C.No.295/2012 on the files of Judicial First Class Magistrate Court-I, Thiruvananthapuram. The authority vested on this Court under Section 482 of the Code of Criminal Procedure is sought to be exercised in this application to quash all proceedings initiated against them in C.C.No.295/2012. 2. C.C.No.295/2012 was originated from a chargesheet filed by the respondent after concluding the investigation initiated pursuant to a First Information Report registered as Crime No.229/2010 of Sreekaryam Police Station. The petitioners are alleged to have committed the offence punishable under Section 353 read with Section 34 IPC. 3. The case of the prosecution was that on 19.04.2012 at 10.20 am, the petitioners with intention to Crl.M.C.No.1163 of 2013 :-2-: obstruct CW1, who is the Commander of Thiruvananthapuram City Control Room Vehicle 14(CRV.14) restrained him from discharging his official duties, for directing them to remove a lorry parked on the road and engaged in unloading goods and thereby, committed the offence punishable under Section 353 read with Section 34 IPC. 4. In this Crl.M.C., the following grounds are raised by Sri.K.P.Sujesh Kumar, the learned counsel for the petitioners to quash the proceedings in C.C.No.295/2012. - (i)The entire materials in the chargesheet even if taken on its face value, would not suffice to attract the offences, with which he is chargesheeted. - (ii)There must be assault or use of criminal force by the petitioners against a public servant for the offence under Section 353 to be invoked. 5. Now it is pertinent to have a look at the materials made available to identify the accusations raised against the Crl.M.C.No.1163 of 2013 :-3-: petitioners. Copies of the F.I.R, the statements of the witnesses and the Final Report are appended with the application seeking the relief. The allegations borne out from the materials are extracted hereunder:- “ÎáØïࢠÉUßÏáæ¿ ÎáX ÕÖ¢ æÄAáµßÝAáÎÞùßÏáU æÎÏßX çùÞÁßWå19.04.2010å øÞÕßæÜå10.20åÎÃßAí T.N.18.B.2977-)o È¢ÌV çÜÞùßæÏ ØíÅÜJá ÈßKᢠÎÞxÞX ÉùE ØÎÏ¢ ¦ÏÄí Õµ ÕÏíAÞæÄ dÉÄßµZå1_)0 ØÞfßçÏÏᢠÎxᢠ¥ÈcÞÏ Ä¿T¢ æºÏñá¢, Äá¿VKáU ØVAÞV ç¼ÞÜßAí Ä¿T¢ çÈøßGí, µcÄcJßÈá ÉøØíÉø¢ ©ÄíØÞÙßµ{á¢, ØÙÞÏßµ{áÎÞÏß ÈßKí dÉÕVJߺîí çÎW ÕµáMáµZ dɵÞøÎáU ÖßfÞVÙÎÞÏ µáx¢ æºÏñßøßAáKá ®KáUÄí.” 6. The allegations would disclose that the petitioners restrained the officials from discharging their official duties when they directed them to remove the vehicle which was in the process of unloading goods from it after parking on the road, causing obstruction to other vehicles. 7. The question relevant for consideration in the context is whether restraint of an official would amount to an offence Crl.M.C.No.1163 of 2013 :-4-: under Section 353 I.P.C. In this connection, it is apposite to extract Section 353 I.P.C. hereunder, which reads:- ”353. Assault or criminal force to deter public servant from discharge of his duty.-- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 8. Section 353 contemplates the pre-requirements as follows for the offence to be attracted:- - i. Assault or criminal force must be there. - ii. The person against whom assault or criminal force is alleged must be a public servant. - iii. The public servant was in the lawful execution of his duty as a public servant. - iv.The assault or criminal force must be exercised with intention to prevent or deter the public servant from discharging his duty. Crl.M.C.No.1163 of 2013 :-5-: v. The use of criminal force must be intentional. - vi. The use of criminal force must be without the consent of the person. - vii.By the use of criminal force, motion, change of motion or cessation of motion of the public servant must have been caused. - viii.Use of criminal force must be with intention to cause or with knowledge that the same is likely to cause injury, fear or annoyance to the person to whom it is used. 9. Therefore, it follows that the above mentioned ingredients are to be established for an offence under Section 353 to be attracted. An analysis of the factual matrix is relevant in the context to see whether the ingredients could be made out from the allegations contained in the materials appended with the application. There cannot be any doubt with respect to the fact that the de facto complainant and his fellowmen are public servants and they were engaged at the Crl.M.C.No.1163 of 2013 :-6-: relevant time in the lawful discharge of their duty as such to address the situation likely to create law and order problems. Obstruction caused by the petitioners by parking the vehicle on the road and unloading goods therefrom, if was not restrained, there was every chance for the vehicular traffic through the road to be disturbed and that would lead to law and order problems. Therefore, undoubtedly, the de facto complainant and his fellowmen intervened to remove the obstruction. In that event, the petitioners restrained the officials from discharging their duties by exercising assault or exerting criminal force on them. It is not disclosed from the allegation that the petitioners made any gesture or any preparation intending or knowing it to be likely that their deeds would create an apprehension to the party to whom those were made, that criminal force would be used against them. It is also manifestly clear from the allegation that the petitioners did not use any force on the officials intentionally or knowing it to be likely that such force would cause injury, Crl.M.C.No.1163 of 2013 :-7-: fear or annoyance to them. 10. In the circumstances, even if the prosecution initiated against the petitioners by way of proceedings in C.C. No.295/2012 is allowed to continue and they were put to face trial, the intended purpose could not be achieved. The allegations are not sufficient and satisfactory to attract the commission of the offence under Section 353 I.P.C. 11. The dictum in Devaki Amma v. State of Kerala [1981 KLT 475] cited by the learned counsel for the petitioners can safely be drawn to the situation on hand. Even though in the said case, a distinction was drawn in respect of offences under Section 353 IPC and Section 186 of the Police Act, the discussion therein would help to understand what is contemplated under Section 353 in a better manner and that is extracted hereinbelow:- “4. The wording of S.353 IPC makes it clear that assault or use of criminal force to a public servant while he was doing his duty as such is a necessary ingredient of that offence. Under S.349 IPC, a Crl.M.C.No.1163 of 2013 :-8-: person is said to use force to another if he causes motion, change of motion or cessation of motion to that other, or if he causes to any substance such motion, or change of motion or cessation of motion as brings that substance into contact with any part of that other's body, etc. What is contemplated under S.353 IPC is not merely use of force but use of criminal force to any person mentioned therein. Even under S.349 IPC, cessation of motion contemplated was that of the substance which was caused to move. This again indicates that what was mainly intended under the section was use of force to any person. To attract the definition of 'criminal force' under S.350 IPC, there must be intentional use of force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used. In other words, the criminal force contemplated under this section is intended to mean criminal force as applied to a person and not as applied to an inanimate object or substance.” (underline supplied) 12. The allegations against the petitioners when viewed in the backdrop of the discussion hereinabove, it can be seen that there was no intentional use of criminal force from the side of the petitioners so as to cause injury to the person subjected to such force or fear or annoyance to him. 13. In such circumstances, any purpose would not be Crl.M.C.No.1163 of 2013 :-9-: served in maintaining C.C.No.295/2012 on the files of the Judicial First Class Magistrate Court-I, Thiruvananthapuram against the petitioners and forcing them to face the trial which is to be proceeded on its basis. It would only be wastage of time of the court and expensive to the petitioners and exchequer. 14. It is undoubtedly made clear from the aforesaid discussion that this Court has every authority to exercise the inherent power contextually and to quash the proceedings in C.C.No.295/2012 pending against the petitioners. In the result, this Crl.M.C. stands allowed and all proceedings initiated pursuant to C.C.No.295/2012 pending on the files of the Judicial First Class Magistrate Court-I, Thiruvananthapuram stand quashed. MARY JOSEPH, JUDGE vs Crl.M.C.No.1163 of 2013 :-10-: