Gujarat High Court
The State Of Gujarat vs Keshavlal Maganbhai Jogani And Ors. on 14 February, 1992
Equivalent citations: 1993CRILJ248, (1992)2GLR882
JUDGMENT M.S. Parikh, J.
1. This appeal by the appellant-State of Gujarat arises out of the judgment and order of acquittal dated 28-3-1983 in Criminal Case No. 4604 of 1982 passed by the learned Chief Judicial Magistrate, Valsad at Navsari acquitting the present respondents (original accused) of the offences punishable under Sections 332, 342 read with Section 109 in the alternative 34 of the Indian Penal Code, hereinafter referred to as 'the Code'. The appeal was admitted after the leave was granted and it was placed for final hearing before this Court.
2. The facts of the prosecution case may briefly be stated below:
One Mr. Naginbhai Nathubhai Patel (complainant) happened to be the Inspector under the Bombay Money Lenders Act, 1946. One Mr. Sureshchandra Kripashankar Pandya was the District Registrar under the said Act. Mr. Krushnalal Sitaram Shah was working as the Head Clerk in the office of the Registrar, Co-operatie Societies at the relevant point of time. On 13th October, 1982 the complainant accompanied with Mr. S.K. Pandya and Mr. K. S. Shah had gone to the shop of Mr. Keshavlal Manganbhai (accused No. 1) run in the name of 'Chandreshkumar Keshavlal Jogani', near Kanyashala of Navsari around 12 O'clock at noon for making inquiry. Mr. S. K. Pandya served required ntice to the accused No. 1 and called upon the said accused to produce books of accounts maintained under the Bombay Money Lenders Act. The accused No. 1 produced the books of accounts which were examined by the said officers. After such examination they had gone to the residential place of accused No. 1 for further inquiry. During the course of such further inquiry, the accused No. 1 was asked to submit objectionable book of account. On that occasion such book of account ultimately going in the hands of the complainant was snatched away by the accused No. 1. After snatching away the book of account, he was about to run away. The complainant prevented him from running away from the place. At that time the accused No. 1 had handed over the book (note book) to his wife (accused No. 3). During that period the accused No. 1 and his son Chandresh (accused No. 2) had assaulted the complainant and gave two slap blows on the left cheek of the complainant. The accused Nos. 1 and 2 had also caught hold of the complainant by his neck. Upon being released from such scuffle by the other officers, the complainant went to some shop in the market and informed the police for protection. The complainant having received the police protection in the form of two policemen seeing him the complainant had taken both the policemen at the residential place of accused No. 1 where the other two officers - Mr. S.K. Pandya and K. S. Shah were unlawfully restrained and were not allowed to go out of the house. Thereafter the complainant and other two officers in the company of the accused No. 2 went to the police station and filed his complaint.
3. The case was investigated at the complaint of complainant Mr. Naginbhai Nathubhai Patel and at the conclusion of the investigation, the aforesaid criminal case was filed before the learned Chief Judicial Magistrate, Valsad at Navsari. After holding the trial and recording the further statements of the accused-persons and hearing the learned advocates for the parties, the learned Chief Judicial Magistrate passed the impugned judgment of acquittal.
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6. Before the evidence, which has been read before me, is considered for finding out whether the prosecution has established the protection case beyond reasonable doubt, it would be necessary to set out the provision contained in Section 342 of the Code. Section 342 reads as under:
"Whoever wrongfully confine any person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
Wrongfully confinement is defined in Section 340 of the Code, which reads as under:
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."
Wrongful restraint is defined under Section 339 of the Code, which reads as under:
"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."
Exception : The obstruction 6f a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section.
7. Now in the present case the complaint speaks in general terms about the Registrar Mr. S. K. Pandya and Head Clerk Mr. K. S. Shah having been unlawfully confined during the time when the complainant had an occasion to go out of the house of the accused No. 1 for seeking police protection. It may be borne in mind that the complaint was given after the whole incident was over and after the accused No. 2 was taken to the police station and, therefore, in the usual course of events the complainant must have been informed about the facts concerning the unlawful confinement. The complaint does not set-out any facts with regard to the unlawful confinement of the aforesaid two public servants. The only assertion is that the two officers were not allowed to go out of the house of the accused No. 1 by the members of accued No. 1 's family.
8. One of the two said confined public servants Mr. S. K. Pandya P.W. 4, Exh. 26 has set out the facts in his examination-in-Chief by saying that when the complainant left the house of the accused No. 1, the said witness and the head clerk were going out of the house and, therefore, the son of the accused No. 1 (accused No. 2) became angry and asked that two officers to sit and told that they would not be allowed to go till Mr. Patel (complainant) returned. There is no further allegation setting out any other fact about the confinement or restraint of Mr. Pandya or Mr. Shah, Mr. K. S. Shah, the head clerk P.W. 5 Exh. 27 has set out the fact that accused No. 1 and his son had told them that they would not be allowed to leave (the house) till their man (the complainant) returned.
9. It can thus be seen that the only allegation about the confinement is addressing of words 'asking the two officers to sit and not to leave the house till the complainant returns'. There is no allegation that any force was displayed. There is no allegation that any threat was given. There is no allegation that there was any apprehension in the mind of two officers about any assault or force being displayed if they tried to leave the house. In the absence of any of such allegations showing any apprehension in the mind of two officers, it is doubtful whether the offence u/S. 342 could ever be said to have surfaced. In this connection Mr. Shah, learned advocate for the respondents referred to a decision in the case of Om Prakash Tilak Chand v. State, reported in (AIR 1959 Punjab page 134 : 1959 Cri LJ 368). A learned single Judge of the Punjab High Court has held that to support a charge of wrongful confinement proof of actual physical obstruction is not essential. But it must be proved in each case that there was at least such an impression produced in the mind of the person confined, as to lead him, reasonably to believe, that he was not free to depart, and that he would be forthwith restrained, if he attempted to do so. In the present case there are no facts alleged muchless proved about any apprehension of force as stated above.
10. In my opinion the offence as set out in Section 342 of the Code is not disclosed in the facts of the case as they appeared from the evidence of Mr. S. K. Pandya and Mr. Shah Exhs. 26 and 27 respectively.
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