SHANAKARLAL SARMA (BHATRA) Vs. STATE OF ASSAM
HIGH COURT OF GAUHATI
Shanakarlal Sarma (Bhatra)
STATE OF ASSAM
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D.PATHAK, J. -
(1.) THIS revision petition is directed for quashing the proceedings in G. R. Case No. 1718 of 1973 of the Court of Sri. R.N. Deb, Magistrate, 1st Class, Gauhati, which was started on the basis of a charge -sheet dated 10.6.1973 for the prosecution of petitioner under Section 341, Indian Penal Code.
(2.) THE proceedings was initiated on the basis of a complaint by the opposite party No. 2 which reads as follows : -
"To The Officer -in -Charge, Gauhati P.S. Complainant : - Sri Narottamala Sharma. M.S. Road, Fancy Bazar, Gauhati. The complainant begs to state that - We have got our own landed property at Murlidhar Sharma Road, Fancy Bazar, Gauhati and among our brothers there is one Ejmali passage. By the said ejmali passage our motor cars etc. come and go. In the interior we have got our motor garage also. The Fiat car standing in my name is inside the garage. My elder brother Shri Shankarlal Sharma has parked his car in the front by blocking the passage. My car has not been allowed to be taken out. For my urgent work it is most necessary to take out that car. It is therefore proved that your honour will investigate into the matter immediately and after arranging for my taking out the car warn Shri Shankarlal Sharma to desist from such actions, 5.6.1973."
(3.) FROM the complaint petition it has to be seen whether there is any offence committed by the petitioner so as to bring the Criminal Court into motion, Section 339. Indian penal Code defines wrongful restraint which reads :
"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 of 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."
From the complaint petition it is quite clear that the Ejmali passage is the common path both for the complainant as well as for the petitioner. Therefore, Exception engrafted to the Section 339, Indian Penal Code is a clear provision where the petitioner believes in good faith that he has a lawful right to obstruct the way. Moreover, Section 339, I.P.C. occurs in Chapter 16 of the I.P.C. which deals with the offence against the human body. The complaint petition does not disclose that any human body is obstructed in this case. From the complaint petition it is clear that what is obstructed is obstruction to the car which is lying in the grange. In this particular case the passage is passage is a common path of all the brothers, the petitioner and the complaint, that is, the opposite party No. 2. Therefore, if in keeping the car by the petitioner on the pathway, there happens to be any obstruction in bringing out the car of the complainant from the garage, the complainant may have some other remedy but not the prosecution of the petitioner under Section 341, I.P.C. Moreover, in the complaint petition, there is only the prayer of making arrangement so that he can take out his car. The further prayer is for warning the petitioner from desisting from such action. I fail to understand how on these facts, the petitioner can be prosecuted. Under Section 341, I.P.C.;
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