Karnataka High Court
Mohammed Salim @ Saleem vs State By Amruthahally Ps on 7 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:19889
WP No. 23287 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
WRIT PETITION NO. 23287 OF 2022 (GM-RES)
BETWEEN:
MOHAMMED SALIM @ SALEEM
S/O ABDUL JABBAR,
AGED ABOUT 50 YEARS,
R/AT 1ST CROSS, HEGDENAGAR,
BANGALORE - 560 077.
...PETITIONER
(BY SRI. MOHAMMED TAHIR., ADVOCATE)
AND:
1. STATE BY AMRUTHAHALLY PS
REPRESENTED BY STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL OFFICE
HIGH COURT COMPLEX, BANGALORE - 560 001.
2. H BHEEM KUMAR,
GOVERNMENT OFFICIAL NON-GAZETTE,
Digitally signed by BMTC DEPO -28, HEBBAL, BANGALORE - 560 024.
VEDAVATHI A K
Location: High
...RESPONDENTS
Court of
Karnataka (BY SMT. ANITHA GIRISH, HCGP FOR R1,
SMT. H.R.RENUKA, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 R/W SECTION 482 OF CR.P.C. PRAYING TO QUASH THE
CHARGE SHEET DATED 15.08.2021 AT ANNEXURE-C I.E. FINAL
REPORT FILED BY THE RESPONDENT POLICE U/S 143, 109,
353, 506 R/W 149 OF IPC AND U/S 5 OF KARNATAKA
ESSENTIAL SERVICES MAINTENANCE ACT 2013 REGISTERED
AS CC NO 27204/2021 IN CONNECTION TO CRIME NO 90/2021
PENDING IN THE FILES OF HON'BLE VII ACMM AT BANGALORE.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC:19889
WP No. 23287 of 2022
ORDER
This petition is filed by the petitioner/accused No.7 for quashing the proceedings in CC No.27204/2021 arising out of the Crime No.90/2021 registered by the Amruthahally Police station, Bengaluru and charge sheeted for the offences punishable under sections 143, 109, 353, 506 read with 149 of IPC and section 5 of Karnataka Essential Services Maintenance Act, 2013 (hereinafter referred to as "KESM Act").
2. Heard the arguments of learned counsel for the petitioner and learned HCGP for the respondent/State.
3. The case of the petitioner is that, the complaint was filed by one Bheem Kumar H., Official of BMTC depot, wherein it is alleged that on 13.04.2021, the employees working in BMTC Unit No.28 of Hebbal had gathered illegally, conducted strike by shooting the video and posted the same on social media, stating that they all have come from different areas, where none of the buses were operating. Out of 100 buses, only one bus is being -3- NC: 2024:KHC:19889 WP No. 23287 of 2022 driven, that too on some pressure. Further, the accused said to have prevented and stopped other staffs from discharging their official duty from attending the work. Thereby, said to be harassing and threatening it's staff from working and said to have committed offence punishable under sections 143, 109, 353, 506 read with 149 of IPC and section 5 of KESM Act and the same is under challenge,
4. Learned counsel for the petitioner contended on perusal of the video CD, absolutely there is no material found in the video to show this petitioner instigated any of the persons or prevented them from discharging official duty or made any criminal force in order to attract section 353 of IPC or he has made any criminal intimidation, to attract section 506 of IPC. Even he is not stated anything to attract section 5 of the KESM Act. Therefore, prayed for dismissing the petition.
5. It is also contended that, there are no independent witnesses or any staffs were examined by -4- NC: 2024:KHC:19889 WP No. 23287 of 2022 police to show this petitioner prevented them or threatened them from discharging official duty. Therefore, there is no material for framing of charge to proceed against the present petitioner for trial.
6. Per contra, learned HCGP seriously objected the petition and contended that the petitioner along with other accused persons unlawfully assembled near the depot and sent the messages through WhatsApp and other social media group, preventing the other staffs from attending the duty. Also they prevented the other officials from going to the duty, which attracts sections 353 and 506 of IPC and section 5 of the KESM Act. Therefore, if at all any contention is available they have to take the same in the trial as a defense, the court cannot quash the criminal proceedings. Hence, prayed for dismissing the petition.
7. Having heard the arguments, perused the records. As per the contention of the prosecution, mostly the prosecution relied upon a video CD produced along -5- NC: 2024:KHC:19889 WP No. 23287 of 2022 with the charge sheet by the police, where the accused No.1 is taking the video and speaking stating that there is no other buses plying anywhere and that they should not believe that the buses are running. The accused No.7, this petitioner also said to have given an indication that he also traveled to places from Hegde Nagar to Kudalu cross, through GKVK, but he did not find any buses plying on the road.
8. On perusal of careful reading of the section 353 of IPC, which reads as under;-
"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."-6-
NC: 2024:KHC:19889 WP No. 23287 of 2022 On perusal of the definition, nowhere the petitioner is said to be shown any criminal force on any of the public servant or any officials and has prevented them from discharging the public duty. They have just mentioned in the video through mobile phone and had sent to the other members of the KSRTC, regarding non-plying of the buses. Absolutely there is no material to show that they have shown any criminal force to prevent the public servants from discharging the official duty. Therefore, the offence under section 353 of IPC, does not attract.
9. As regards to section 506 of IPC, there are no materials found or even in the statement of the witnesses. There are no independent witnesses were examined or any co-staffs, drivers, or conductors were examined by the police, in order to show this petitioner along with other accused threatened them, not to attend the duty. Even in the video graph, it is not seen. Such being the case, section 506 of IPC, also does not attract. -7-
NC: 2024:KHC:19889 WP No. 23287 of 2022
10. Learned counsel for the petitioner contended, section 109 of IPC is also not attracted, as there is no offence committed and there is no abetment of committing any offence.
11. On perusal of section 5 KESM Act, which reads as under;-
Penalty for instigation.- Any person who instigates, or incites any other person to take part in, or otherwise acts in furtherance of strike which is illegal under this Act in any essential service, shall on conviction, be punished with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both.
It is relevant to note that the KESM Act was brought for stopping the illegal strikes, where it is submitted that the KSRTC employees called for strike and not to attend the duty. Subsequently, KSRTC management said to have declared strike was illegal.
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NC: 2024:KHC:19889 WP No. 23287 of 2022
12. Learned counsel submits that the said notification which was challenged before the High Court under a writ petition for mentioning strikes as illegal strikes, which is pending before court and stay has been granted. Once the matter is pending before the court, whether the strike is legal or illegal, has to be decided by the coordinate bench of this court. However, it is for the petitioner at present, they said to have made statement in the video through Whatsapp and other facebook social media, stating that "no buses are plying and the management are simply lying that the bus are running and that they should not believe them", it is nothing but an instigation, as per the definition, though it is legal or illegal, until the disposal of the petition by the coordinate bench. Therefore, Section 5 of the KESM Act is also attracted as the video instigates other employees not to attend their duties, it also appears prima-facie in the video graph, where the accused persons altogether along with others assembled and made the statement. -9-
NC: 2024:KHC:19889 WP No. 23287 of 2022
13. As regards to section 109 of IPC, once the offence is committed, strike was successfully conducted by the accused persons, section 5 of KESM Act, attracts. Therefore, section 109 of IPC is also attracted. As regards to the assembly, section 143 read with 149 of IPC is also attracted. Therefore, I am of the view that except sections 353 and 506 of IPC, other offences are made out for framing of the charges.
Accordingly this petition is allowed in part Therefore, the proceedings against the petitioner in CC No.27204/2021 arising out of the Crime No.90/2021, the offences punishable under Sections 353 and 506 of IPC, are hereby quashed.
However, for the remaining offences, the trial court shall proceed with the trial.
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NC: 2024:KHC:19889 WP No. 23287 of 2022 It is mentioned earlier, the case was pending against him and due to absence of this petitioner case against him was split up. Hence, the trial court is directed to club both the matters together and proceed.
Sd/-
JUDGE AKV List No.: 1 Sl No.: 62 CT:HR