Karnataka High Court

Mohammed Imran Mh vs The State Of Karnataka on 4 November, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                      CRL.P No. 10034 of 2024




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 4TH DAY OF NOVEMBER, 2024

                                            BEFORE

                         THE HON'BLE MR JUSTICE M.NAGAPRASANNA

                            CRIMINAL PETITION NO.10034 OF 2024

                 BETWEEN:

                 1.   MOHAMMED IMRAN MH
                      S/O. MOHAMMED HUSSAIN,
                      AGED ABOUT 39 YEARS,
                      R/AT NO.4-365, SHLOOM NIVAS,
                      NEAR RAILWAY BRIDGE,
                      MALLAR VILLAGE, MAJOOR, KAUP,
                      UDUPI DISTRICT - 574 106.

                 2.   MOHAMMED SHAMOON,
                      S/O. IBRAHIM,
                      AGED ABOUT 31 YEARS,
                      R/AT NEAR MALLARA PANCHAYATH,
                      KOMBAGUDDE, MAJOOR, KAUP,
                      UDUPI DISTRICT - 574 106.

                 3.   SHAHID,
                      S/O. MOIDDIN,
                      AGED ABOUT 31 YEARS,
                      R/AT IRFAN MANZIL, GUDDEKERI,
Digitally signed
by NAGAVENI           MALLARA VILLAGE,
                      UDUPI DISTRICT - 574 106.
Location: HIGH
COURT OF         4.   MAHAMMED SHARIF,
KARNATAKA             S/O. SHAMSHUDDIN,
                      AGED ABOUT 27 YEARS,
                      R/AT ASHIYA MANZIL,
                      NEAR JAMUR CIRCLE,
                      MAJOOR VILLAGE,
                      UDUPI DISTRICT - 574 106.

                 5.   NAZEER,
                      S/O. MOHAMMED SAHEB,
                      AGED ABOUT 53 YEARS,
                      R/AT MAJOOR POST,
                      UDUPI DISTRICT - 574 106.
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                                      CRL.P No. 10034 of 2024




6.   K.S. NISHAL AHMED,
     S/O. HAROON RASHEED,
     AGED ABOUT 25 YEARS,
     R/AT ALSAFA MANSION, KOMBAGUDDE,
     NEAR PANCHAYATH ROAD,
     MALLAR VILLAGE, PADU,
     UDUPI DISTRICT - 574 106.

7.   MOHAMAD RAFIQ,
     S/O. HAMMABBA,
     AGED ABOUT 45 YEARS,
     R/AT NO.2-24, HALEEMA MANZIL,
     KOMBAGUDDE, KAUP POST,
     UDUPI DISTRICT - 574 106.

8.   MOHAMMED RAZAK,
     S/O. ABDUL BEARY,
     AGED ABOUT 48 YEARS,
     R/AT NO.1-31, BISMILLA HOUSE,
     NEAR MAJUR MANDAL PANCHAYATH,
     KAPU, UDUPI DISTRICT - 574 106.             ... PETITIONERS

(BY SRI LETHIF B., ADVOCATE)

AND:

1.   THE STATE OF KARNATAKA
     BY KAPU POLICE STATION,
     UDUPI DISTRICT.
     REP. BY SPP, HIGH COURT BUILDING,
     BANGALORE - 560 001.

2.   CHANDRASHEKHAR S. CHITTUR
     CPC-2655, KAPU POLICE STATION,
     UDUPI DISTRICT - 574 106.                  ... RESPONDENTS

(BY SRI B.N. JAGADEESHA, ADDL SPP FOR R-1)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
CR.PC (FILED U/S 528 BNSS) PRAYING TO QUASH THE ENTIRE
PROCEEDINGS AGAINST THE PETITIONERS IN CC NO.3149/2020
FOR THE OFFENCE P/U/S 143, 147, 353 R/W 149 OF IPC ON THE
FILE OF II ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI OF KAPU
POLICE STATION WHICH IS PRODUCED AT ANNEXURE-A, IN THE
ABOVE CASE.
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                                                 CRL.P No. 10034 of 2024




      THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM:    HON'BLE MR JUSTICE M.NAGAPRASANNA


                         ORAL ORDER

1. Heard.

2. Learned counsel for the petitioners submits that the

issue in the lis stands covered by the judgments of

rendered by the coordinate bench of this Court in Crl.P.

No.9366/2018 and that of this Court in Crl.P.

No.6763/2020, wherein it is held as under :

"Heard Shri C.V.Nagesh, learned Senior Advocate for the petitioner and Shri A.S. Ponnanna, learned Additional Advocate General for the State.

2. This petition is filed challenging FIR No.59/2018 registered on 13.12.2018 in Vidhana Soudha police station alleging commission of offences punishable under Sections 353 & 120B of IPC against petitioner and two others.

3. Shri C.V.Nagesh, learned Senior advocate, adverting to the complaint lodged by one Shri Manjunath.B, Police Inspector, CCB, Bengaluru,

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pointed out that the contents of complaint are to the effect that Mr. Zaid Khan and Mr. Sirajuddin held a press conference in Press club in Bengaluru on 12.12.2018 and in the said press conference, they had allegedly made certain uncharitable allegations against Police officers, CCB, who were investigating the offences in respect of a Company called 'Ambident'; and stated that their investigation had facilitated the accused in the said case to obtain bail. With the said allegations, instant complaint has been lodged alleging offence punishable under Section 353 of IPC in Vidhana Soudha police station. He argued that if the complaint is read in its entirety, it does not disclose any offence punishable under Section 353 of IPC. He placed reliance on Manik Taneja and another v. State of Karnataka and another1 and submitted that the instant complaint does not fulfill the ingredients of Section 353 of IPC. Accordingly, he prays for allowing this petition.

4. Shri A.S.Ponnanna, learned Additional Advocate General argued in support of the complaint.

5. I have carefully considered the submissions of learned Senior Advocate, learned Additional Advocate General and perused the records.

(2015) 7 SCC 423

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6. Section 353 of IPC reads as follows:

"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 be 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."

(emphasis supplied)

7. In substance, what is alleged in the complaint is that two persons namely, Mr. Zaid Khan and Mr. Sirajuddin had made certain uncharitable comments against Police officers. When the allegations levelled in the complaint are examined in the light of language employed in Section 353 of IPC, it is clear that complaint does not contain any allegation of assault or use of criminal force to a public servant with intent to prevent him from discharging his duty. It is unfortunate that Police officers have resorted to registering a complaint without there being any ingredients attributable to Section 353 of IPC. In Manik Taneja, the Supreme Court of India has held as follows:

"10. So far as the issue regarding the registration of FIR under Section 353 IPC is

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concerned, it has to be seen whether by posting a comment on the Facebook page of the traffic police, the conviction under that section could be maintainable. Before considering the materials on record, we may usefully refer to Section 353 IPC which read as follows:

"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 be 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."

A reading of the above provision shows that the essential ingredients of the offence under Section 353 IPC are that the person accused of the offence should have assaulted the public servant or used criminal force with the intention to prevent or deter the public servant from discharging his duty as such public servant. By perusing the materials available on record, it appears that no force was used by the appellants to commit such an offence. There is absolutely nothing on record to show that the appellants either assaulted the respondents or used criminal force to prevent that second respondent from discharging his official duty. Taking the uncontroverted allegations, in our view, the ingredients of the offence under Section 353 IPC are not made out."

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8. In the circumstances, it leaves no doubt that the allegations in the complaint do not conform to the attributes and ingredients of Section 353 of IPC. Resultantly, this petition merits consideration and is accordingly allowed. FIR No.59/2018 registered in Vidhana Soudha Police station pending on the file of I Additional Chief Metropolitan Magistrate, Bengaluru and all further proceedings thereon are quashed.

9. At this stage, Shri C.V.Nagesh, learned Senior Advocate contends that since this Court has taken a view that FIR is bad in law and quashed the same, any materials seized during the course of investigation shall be returned. He is right in his contention. In the circumstances, respondents are directed to release any or all articles seized during the course of investigation, forthwith.

10. In view of disposal of the petition, I.A.No.1/2019 does not survive for consideration and the same stands disposed of.

No costs."

The petitioners are before this Court calling in question proceedings in C.C.No.2912/2019 registered for offences punishable under Sections

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143, 151 read with Section 149 of the IPC pending before the Principal Civil Judge and JMFC Court, Belthangady, Dakshina Kannada district.

2. The issue in the petition is akin to what is decided in Crl.P.No.3916/2018 disposed on 17.02.2020, wherein this Court has examined the identical facts and offences alleged against the petitioners therein. While so examining, this Court has held as follows:

"4. The gist of the complaint is that on 23.05.2017 at about 11.30 a.m., received a credible information that a group of people gathered on Queen's Road shouting slogans against the Government. Immediately, he went to the spot and found that 50 young men assembled illegally and disturbed the public and vehicles without prior permission from the station. On enquiry he found that they are the members of Campus Front of India Karnataka and protesting against interference religious and personal freedoms by imposing dress code in 'AIIMS Exam' which is against the personal and religious rights of our Constitution. Immediately they were disbursed and a case has been registered and after investigation, the charge sheet has been filed.

5. It is the submission of the learned counsel for petitioners that though there is no substantial material as against petitioners/accused Nos.1 to 48, the respondent have investigated the case and have filed the charge sheet against petitioners/accused Nos.1 to 48. It is his further submission that in order to file a

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charge sheet under Section 143 of IPC, the unlawful assembly must satisfy the ingredients as contemplated under Section 141 of IPC but none of the ingredients are satisfied in this case. It is his further submission that mere presence in an unlawful assembly, cannot render a person liable unless there was a common object, they were actuated by the common object and that object is one of those set out under Section 141 of IPC. It is his further submission that if the common object of an unlawful assembly is not proved, the accused persons cannot be convicted either under Section 143 of IPC or under Section 149 of IPC. It is his further submission that the prosecution has to prove the overt-acts as against the persons who have been alleged as a member of unlawful assembly. In order to substantiate his said contention, he has relied upon the decision of the Hon'ble Apex Court in the case of CHARAN SINGH AND OTHERS Vs. STATE OF UTTAR PRADESH reported in (2004) 4 SCC 205. It is his further submission that as per the Licensing and Controlling of Assemblies and Public Processions (Bangalore City) Order 2009, the permission is required in Bangalore City if the congregation of more than 250 persons assembling at one place with an intention to conduct the meeting, protest, to hear a public speech including political, social, religious and cultural meetings to which the public have got free access. The said condition specially says that no permission or license is required in Bangalore City if the congregation of more than 250 persons assembling at one place with an intention of conducting meeting to protest. It is the specific submission that petitioners/accused Nos.1 to 48 have given the letter dated 20.05.2017 seeking permission but no such permission is granted

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by the Commissioner of Police., under such circumstance, the said assembly cannot be held as an unlawful assembly and the provisions of Sections 141, 143, 147, 149, 188 of IPC are not attracted. On these grounds, he prayed to allow the petition and to quash the proceedings.

6. Per contra, learned High Court Government Pleader vehemently argued and submitted that as per the Licensing and Controlling of Assemblies and Public Processions (Bangalore City) order, 2009 the congregation of more than 250 persons is required but as per Section 141 of IPC, an assembly of five or more persons is considered to be an unlawful assembly and if they have assembled with a common object, then under such circumstance, accused persons can be prosecuted for the alleged offences. It is his further submission that the contents of the complaint and other materials clearly indicate that they were intending to proceed to Raj Bhavan in that light, they have obstructed the public traffic, public movement and thereby, they have violated the provisions of Section 141 of IPC and other provisions of law. It is his further submission that there are independent eye-witnesses and they have also categorically stated with regard to the overt-acts of each of the accused persons and there is ample materials to connect the accused persons to the alleged crime. On these ground, he prayed to dismiss the petition.

7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and perused the records.

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8. On perusal of records, it is the case of the prosecution that the petitioners/ accused Nos.1 to 48 have assembled and were protesting against interference and dress code imposed by AIIMS exam and also have not obtained any permission from the concerned Authorities. But as could be seen from the Licensing and Controlling of Assemblies and Public Processions (Bangalore City) Order, 2009 assembly means a congregation of more than 250 persons assembling at one place with an intention of conducting meeting or protest, to hear a public speech including political, social, religious and cultural meetings to which the public have got free access, license is required only when more than 250 persons are there. Admittedly in the instant case, the contents of the complaint and other materials indicates that only 50 persons have assembled. In that light, a license said to have been is not necessary as per the Order of 2009. The only question which remains for consideration of this Court is that whether the

had constituted an unlawful assembly as per Section 141 of IPC? In order to attract the said provision, the assembly must satisfy five ingredients which have been stated therein but on close reading of the contents of the complaint, charge sheet material and other materials, it indicates that none of the ingredients are present as contemplated under Section 141 of IPC.

9. Be that as it may. If 50 persons have assembled at a particular place, then under such circumstance, it cannot be held as an unlawful assembly. Mere presence of a person in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common

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object and that object is one of those set out in Section 141 of IPC. This proposition of law has been laid down by the Hon'ble Apex Court in the case of CHARAN SINGH (Quoted supra) at paragraph No.13, it has been observed as under:

"13. Coming to the others who were armed with double-barrelled guns and country-made pistols, the question is regarding applicability of Section 149 IPC. Section 149 IPC has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word "object" means the purpose or design and, in order to make it "common", it must be shared by

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all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Section 149 has to be strictly construed as equivalent to "in order to attain the common object". It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149 IPC may be different on different members of the same assembly."

10.On close perusal of the charge sheet material, it indicates that none of the ingredients specify in Section 141 of IPC are present so as to attract the provisions of Sections 141, 143, 149, 188 of IPC. When

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that being the case, then under such circumstances, the proceedings initiated as

appears to be not in accordance with law and the same is liable to be quashed.

11. Accordingly, petition is allowed and the proceedings initiated in C.C. No.23259/2017 pending on the file of VIII Additional CMM, Bengalulru for the offence punishable under Section 143 read with Section 149 of IPC is hereby quashed."

The aforesaid order passed by a Co-ordinate

Bench of this Court would cover, the case at hand

on all its fours. That apart, there were no witnesses

that would speak about the incident alleged against

the petitioners which has happened in a broad day

light, apart from all the witnesses examined being

police officials.

3. Therefore, in the light of the order

passed by a Co-ordinate Bench of this Court supra,

the following: