Himanshu Negi vs State of Uttarakhand

Umesh Chandra Dhyani, J.—By means of present Application u/s 482 Cr.P.C., the applicants seek to quash the charge-sheet dated 26.10.2011, summoning order dated 12.04.2012 as well as the entire proceedings of Criminal Case No. 281 of 2012, captioned as State vs. Himanshu Negi and others, under Sections 147 and 341 of IPC, pending in the Court of Judicial Magistrate, Kashipur, District Udham Singh Nagar.

A first information report was lodged by respondent no. 2 against the applicant no. 1 and 20-25 other unknown persons, on 08.10.2011, at PS Bajpur, for the offences punishable under Sections 147/341 of IPC. Applicant no. 1 was arrayed in the charge-sheet in the capacity of Secretary of Students'' Union of Local Degree College. The others were not named in the first information report.

It is the allegation against the applicants and others that on 08.10.2011, at 10:35 am, applicant no. 1 and 20-25 other unknown persons assembled at Ramraj Chauraha, Keshowala Road. It is alleged that the applicants no. 2 to 5 and others along with school children assembled under the leadership of applicant no. 1 at National Highway, as a consequence of which, the movement of traffic was disrupted. The mob was dispersed only with the intervention of Sub Divisional Magistrate and Circle Officer, Bajpur.

It is the contention of learned counsel for the applicants that the applicants were guardians of the children, who were going to the school. The students started agitation because the administration failed to repair the road.

Even if the contents of the first information report, which is lodged against the applicants, be presumed to be true, no offence, even prima facie, is made out against the applicants.

The applicants have been charge-sheeted u/s 341 of IPC, which is penal Section for ''wrongful restraint''. ''Wrongful Restraint'' is defined u/s 339 of IPC to mean whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction, in which that person has a right to proceed, is said wrongfully to restrain that person. It is not indicated in the first information report as to who was prevented? Which person was prevented from proceeding in any direction, in which that person had a right to proceed? No such person has filed a complaint that he was prevented from proceeding in any direction. It was an agitation by a mob drawing the attention of the administration towards the condition of the road. School going children were going to the school. Nobody was prevented from proceeding in any direction, in which that person had a right to proceed. Further, it is not disclosed as to who prevented those persons? In this way, it cannot be said that any person was voluntarily obstructed from proceeding in any direction. Since the very ingredients of Section 339 of IPC are not made out, therefore, the applicants should not be tried for the offence alleged against them.

Further, it is not the allegation against the applicants that they constituted an ''unlawful'' assembly. They did not use force or violence in prosecution of the common object of such assembly. Therefore, it cannot be said that they committed offence punishable u/s 147 of IPC. It may be noted here that Section 147 of IPC provides for punishment for ''rioting''. The word ''rioting'' is defined u/s 146 of IPC to mean that 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''.

Thus foundation of criminal offence u/s 146 of IPC or offence u/s 339 of IPC is not laid against the applicants.

It was held by Hon''ble Supreme Court in Amit Kapoor Vs. Ramesh Chander and Another, , that:

i. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

ii. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.

iii. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.

It was further held by Hon''ble Apex Court that if the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied, then the Court may interfere. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution.

Although inherent jurisdiction u/s 482 Cr.P.C. has to be exercised sparingly, carefully and with caution, but the instant case appears to be one such case in which the proceedings against the applicants should be quashed.

As a consequence thereof, the application u/s 482 Cr.P.C. is allowed. Charge-sheet dated 26.10.2011, summoning order dated 12.04.2012 as well as the proceedings of Criminal Case No. 281 of 2012, captioned as State vs. Himanshu Negi and others, under Sections 147 and 341 of IPC, pending in the Court of Judicial Magistrate, Kashipur, District Udham Singh Nagar, are hereby quashed qua applicants.