Karnataka High Court
Basavant Laxmappa Kamble vs The State Of Karnataka on 3 September, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF SEPTEMBER, 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION No.2147 OF 2010
BETWEEN:
Basavant Laxmappa Kamble,
Aged 36 years,
Occupation: Agriculture,
Resident of Shirol,
Taluk: Mudhol,
District: Bagalkot. ...PETITIONER
(By Shri Gangadhar S. Hosakeri, Advocate)
AND:
The State of Karnataka,
Represented by the Government
Advocate, High Court of Karnataka,
Dharwad Bench. ...RESPONDENT
(By Shri Vinayak S. Kulkarni, Government Pleader)
---
This Criminal Revision Petition is filed under Section
397 read with 401 of the Code of Criminal Procedure, 1973,
seeking to set-aside the judgment and order dated 14.12.2009
passed by the Fast Track Court, Jamkhandi, in
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Crl.A.No.41/2008 partly modifying the judgment and order
dated 28.03.2008 passed by the Additional JMFC, Mudhol, in
C.C.No.708/2007 for the offences punishable under Section
341 and 353 of the Indian Penal Code, 1860.
This Petition coming on for orders this day, the Court
made the following:
ORDER
Heard the learned counsel for the petitioner and the learned Government Pleader.
2. The petitioner is the accused against whom offences punishable under Sections 341 and 353 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.', for brevity) was alleged. One Shivalingayya, a Junior Engineer working in HESCOM at Jamkhandi Sub-Division, was the complainant. He was employed in the meter reading section. On 26.03.2007, the complainant along with his staff were on their rounds to inspect and check meters installed in the houses of the residents of Shiroli village, Mudhol Taluk and on 26.03.2007 at about 11.30 a.m. when the complainant along with his staff went in 3 the jeep of their department for the said purpose and when they were about to enter the village, at the entrance to the village, it is alleged that Accused Nos.2 to 4 including the present petitioner who was Accused No.1, had come there and blocked their way and prevented the jeep from proceeding further to enter the village and to check the meters. It is the allegation of the complainant that he had informed the accused that they were following the directions of their superiors and that they were bound to carry out the orders, but the accused did not budge and therefore, wrongfully restrained the complainant and his staff from discharging the duty and in permitting them to check the meters in the village. On account of the adamant and aggressive stand of the accused, the complainant and his staff had withdrawn due to fear of retaliation if they impose themselves on the accused and had lodged a complaint at 9.30 p.m. in the jurisdictional police station. A case was registered for offences punishable under the aforesaid sections and the presence of the accused was secured before the Court of the 4 Magistrate and after further proceedings, the accused had pleaded not guilty and claimed to be tried. The prosecution examined PWs 1 to 10 and got marked Exhibits P1 to P4. Thereafter, the statements of the accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to 'Cr.P.C.', for brevity) was recorded and on hearing the arguments, the Trial Court framed the following points for consideration:
"1) Whether the prosecution proves beyond all the shadow of reasonable doubt that on 26.3.2007 at 11.30 a.m. in Shirol village on the public road nearby the main door of Shirol village all the accused in order to commit an offence of wrongfully restrainment, having the further common intention and thereby wrongfully restrained the complainant and CW.4 to 9 when they were proceeding to discharge their Government duty and during that period of time the accused were telling them that they will not permit them to check and inspect the meters in their village and hence, the accused have 5 committed an offence punishable under section 341 read with section 34 of IPC?
2) Whether the prosecution proves beyond all the shadow of reasonable doubts that on the above mentioned date, time and place all the accused in further of common intention to commit an offence of using criminal force to deter the complainant and CW.4 to 9 public servants from discharging of their duty while they were proceeding to check and inspect the meters in the said village the said accused wrongfully restrained the complainant and CW.4 to 9 stating they will not permit them to do their duty and thereby using the criminal force from discharging their duty and hence, all the accused have committed an offence punishable under Section 353 read with section 34 of IPC?
3) What order?"
The Trial Court answered the same in the affirmative and convicted the accused for the offences punishable under the aforesaid provisions and sentenced to simple imprisonment for 6 one month and to pay a fine of Rs.300/- for the offence punishable under Section 341 and to undergo simple imprisonment for six months and to pay a fine of Rs.700/- for the offence punishable under Section 353. The same having been challenged in appeal, the Appellate Court while affirming the judgement of the Trial Court, however reduced the punishment for the offence punishable under Section 353 to simple imprisonment of three months while confirming the sentence in all other respects. It is that which is under challenge in the present Revision Petition.
3. The learned counsel for the petitioner would seek to canvass the argument that, from a bare reading of the complaint, there is no indication of the accused having caused any such wrongful restraint. It was not evident that they used any criminal force or intimidatory language in order that it could be said that the complainant and his staff were prevented from going about their duties. Even if it is to be accepted that 7 the present petitioner and the other accused had indeed waylaid the complainant and his staff while they were proceeding in a jeep, there was no impediment for them to have sought the assistance of the local police and to have carried on their duty and in the absence of any allegations of any intimidatory attitude on the part of the petitioner and others, it is difficult to accept that there was any such incident. The accused were utter strangers to the complainant and his staff and it is inexplicable that they have been named in the complaint through the complainant. The explanation that they had learnt about the names of the accused through the medium of CW-4, is only an afterthought and has been supplied during the trial. There is no indication of any such information having been gathered through CW-4 examined as PW-3 in the first instance. Therefore, the reason for initiating the criminal case was on account of the vociferous protest made by the accused over the erratic power supply to the village and the complainant and his staff having been taken to task by their higher authorities for the 8 tardy fashion in which electricity was being supplied to the village, and this glaring circumstance has been overlooked by the court below.
The learned counsel would also point out that the letter of Section 353 would not apply to the allegations at all. There is no assault or criminal force used by the accused against the complainant and his staff. There is no such allegation in the complaint. Therefore, the allegation and the charge framed are not consistent. There is no basis for invoking the offence punishable under Section 353, in the absence of any foundation laid in that regard. Therefore, the entire case insofar as Section 353 is concerned, is baseless and it would enable the accused to be discharged insofar as the allegation of an offence punishable under Section 353. Therefore, the very identification of the accused in the first instance and the charges being without any basis, entitled the petitioner and others for acquittal and hence, there is gross injustice in the petitioner and others having been convicted as aforesaid.
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4. While the learned Government Pleader would point out that insofar as the offence punishable under Section 341 is concerned, there is no denial of the complainant and his staff having visited the village on 26.03.2007 and therefore, by the tenor of the cross-examination, it is evident that the complainant and his staff were indeed restrained from going about their duty of inspecting the meters and that would be sufficient to bring it within the mischief of Section 341, whereby the complainant and his staff having been prevented from proceeding with their duty, the offence is clearly committed and therefore, the punishment imposed being nominal in respect of the said offence, there is no warrant for interference by this court, as there is no dispute of the complainant and his staff having been prevented from proceeding with their duty. The defence that there was no offensive language used nor an intimidatory circumstance on the part of the accused, is only seeking to justify their action of having prevented the complainant and his staff from carrying 10 out their duties and therefore, the offence is attracted. Insofar as the offence punishable under Section 353 is concerned, it is again evident that there was criminal force used in not having allowed the complainant and his men to proceed with their duties and to that extent, it cannot be said that the section was not attracted. It is contended that the accused having used force knowing that it would cause fear in a public servant to carry out a public duty, it is again sufficient to bring the actions of the accused within the mischief of Section 353 and therefore would submit that the prosecution had established its case beyond all reasonable doubt. He would further submit that PW-3 was an officer of HESCOM who was stationed in the village and therefore, was familiar with the residents of the village, including the accused and since it is also on record that he was accompanying the complainant and his staff at the time that they were about to enter the village to inspect the meter, there is no doubt that the accused had indeed prevented the complainant 11 and others from carrying out the public duty and hence, seeks that the petition be dismissed.
5. While it is to be borne in mind that the Revision Petition under Section 397 is limited, in that the revisional power of this court is limited to the aspect of legality or otherwise of the judgments without having room for reexamination or reappreciation of the evidence on record. Hence, this court restricts the scope of consideration of the challenge to the quantum of punishment that is imposed, given the circumstances of the case and whether the tenor of the relevant sections which have been invoked, would be attracted. Insofar as the offence punishable under Section 341 IPC is concerned, when it is not seriously disputed that PW-3 was an officer stationed in the village and was familiar with the accused and the case of the prosecution that there were six witnesses who had supplied the names and identified the accused in order to enable the complainant to lodge a complaint 12 against the petitioner and others, it cannot be said that the prosecution had failed to establish its case insofar as the complainant and his staff having been prevented from proceeding with their duties. To that extent, the offence punishable under Section 341 stands established.
The punishment prescribed under Section 341 being maximum punishment of one month or with fine or with both, the court below having thought it fit to impose the maximum punishment of imprisonment and a substantial fine, appears to be disproportionate to the circumstances of the case. The present petitioner and the other accused being villagers and in the absence of any violation, threats or any intimidatory action on their part, the complainant and his staff who would have the power to force themselves on the villagers in proceeding to examine the electricity meters and if that were not possible, it was always open for them to secure police protection in doing so. Hence, the allegation that the petitioner and three others had managed to stop the persons who were more in number, is 13 difficult to accept. But however, since there is ample evidence to indicate that there was some restraint and the complainant and his staff having meekly withdrawn without any resistance, did not require that the petitioner should be punished with the maximum punishment of imprisonment or a substantial fine. It was sufficient if the punishment was restricted to the imposition of fine. Therefore, the sentence insofar as the offence punishable under Section 341 is concerned stands modified insofar as the petitioner is concerned, since the other accused have not challenged the sentence imposed. It stands reduced to fine of Rs.500/- while eschewing the punishment of imprisonment. Similarly, insofar as the offence punishable under Section 353 is concerned, the primary requirement was that there ought to be assault or use of criminal force. Criminal force as defined in Section 350 required that the force used by any person to commit any offence ought to have been such that it would cause injury, fear or annoyance to whom the force is used. From the ingredients of the complaint, in the absence of 14 any allegation that there was any violation, threat or other intimidatory stance on the part of the accused, it cannot be said that there was criminal force used on the complainant and his staff in fear of the accused. Therefore, the ingredients of Section 353 were clearly absent from a bare reading of the complaint and the prosecution had not made out a case insofar as the allegation of commission of an offence under Section 353 is concerned. Consequently, the conviction for an offence punishable under Section 353 is set aside and the accused is acquitted insofar as the offence punishable under Section 353 is concerned. The accused shall pay the fine for the offence punishable under Section 341 within one week from the date of receipt of a copy of this order. In default, the petitioner shall suffer simple imprisonment of 15 days.
Sd/-
JUDGE KS