9911796707
TMI Blog1963 (9) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused Monoranjan Kulavi was charged under Section 426 of the Indian Penal Code. The teamed Magistrate acquitted all the accused persona of the charge under Section 147 of the Indian Penal Code. He also acquitted Sudhangsu Das, Nalini Manna and Kalipada Kulavi under Section 323 of the Indian Penal Code and Monoranjan Kulavi of the charge under Section 426 of the Indian Penal Code, but he convicted Nalini Manna and Kalipada Kulavi of the offence under Section 341 of the Indian Penal Code. On appeal that conviction passed against Nalini Manna and Kalipada Kulavi has been set aside. Against that appellate order the de facto complainant Madhav Chandra Charehari moved this Court and the present Rule issued. 2. Prosecution case briefly is that on 21st of May, 1962 a motor-bus No. W G B 1414 that has been given a name Pusparath was on its journey on Ghatal-Panskura route in the district of Midnapore with several passengers in it. Madhav Charchari P. W. 1 was the conductor of that bus, Gunadhar Khamroy P. W. 3 was the helper of that bus, Gojri Hari Bera P. W. 2 was the chacker of the bus, and Niranjan Pramanik was the driver. The bus Pus-paratha left Ghatal at 7.30 P. M. with severa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms: That you on or about same day at Goura P. S. Daspur wrongfully restrained bus No. bus No. 1414 (Pusparath) from proceeding from Goura towards its destination and thereby committed an offence punishable under Sec, 341 of the Indian Penal Code........ it may be mentioned that in the charge under Section 147 of the Indian Penal Code the common object was also mentioned as restraining bus No. WGB 1414 (Pusparath) . 4. All the accused persons including the two opposite parties pleaded not guilty to all the charges. They did not deny that there was an incident at the time and place alleged by prosecution when this particular motor-bus was plying along Ghatal -- Panskura route with several passengers in it. Defence contended that over the incident of Shal leaves being dropped on the conductor, the passenger, who himself was taking down the Shal leaves, was abused in filthy terms that led to an altercation between the conductor on one side and the passengers of the bus on the other. Nalini Manna who is a rich businessman of some position and influence in that village Goura intervened to settle the matter. He asked the conductor to apologise to the passenger which the cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enal Code-against the accused Nalini Manna could not be said to have established because the conductor P. W. 1 to whom the hurt was said to have been caused had no injury an his person. Accused Nalini and Kalipada were, therefore, acquitted of the charge under Sees. 147 and 323 of the Indian Penal Cods against them but on the charge under Section 341 of the Indian Penal Code the learned Magistrate held that the argument that Section 341 of the Indian Penal Code envisages restraining of a person and not of an inanimate object had no force in it, The learned Magistrate expressed himself in these words:-- About the first argument, it can be said that the bus is meant to convey passengers. The driver of the bus has the duty to reach the passengers to a certain destination over a certain route. That is to say, he has the, right to proceed in a certain direction with the bus. Right to proceed does not necessarily mean the right to proceed only on foot as envisaged by Section 341 I. P. C. And so if the bus is restrained to proceed in the direction in which the driver and the other occupants of the bus have the right and the other occupants of the bus have the right to proceed, an off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Section 341 I. P. C. in this case. He accordingly held that no case under Sac. 341 of the Indian Penal Code has been made out against the accused persons and consequently he set aside the order of conviction and sentence passed by the learned Magistrate 2nd acquitted the accused persons. 7. Appearing in support of the Rule against that appellate order Mr. Anil Sen has contended that every one of the three propositions of law that has impelled the learned Assistant Sessions Judge to hold that an offence under Section 341 of the Indian Penal Code is erroneous. Mr. Sen contends that although the language in the frame of the charge could have been more explicit, there has been no defect at all in the charge as framed because its true implication was clearly understood and the accused persons have neither been misled nor been prejudiced in making their defence. No complaint was made regarding any defect in the charge in the trial Court, in such circumstances ever if it could be thought that there was some defect in the language so as to constitute an error, that alone will not entail setting aside the order of conviction upon a mere likelihood of prejudice as the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is clear that the voluntary obstruction of a vehicle cannot be held to amount to wrongful restraint within the meaning of Section 339 I. P. C. But an examination of the facts of that case reveals that It was a case where We carts carrying the paddy purchased from the complainant had been prevented from proceeding along the public road by the accused persons, their object being to compel the payment to their master the landlord of their village of certain so-called dues known as weighmen's dues. It was not the case there that any person was riding in that cart that was carrying paddy. That is why Patterson J. in his judgment pointed out that there was no evidence on the record from which it might be inferred that purchaser or seller of paddy or the carters were themselves prevented from proceeding along the public road or wherever else they might have wished to go and this being so it is clear that the conviction under Section 341 of the Indian Penal Code must fee set aside . That aspect of the case does not appear to have been noticed by Happell j. of the Madras High Court when his Lordship in his judgment in the case reported in AIR 1947 Mad 124 said : With r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been wrongfully restrained if he is asked to get down from the vehicle and left free to move on his toot would, In my view, take away a very large part of the content and meaning of the word proceed occurring in the definition in Section 339 of the Indian Penal Code. That word cannot be given the limited meaning of proceed on foot only. 11. I may observe that the learned Assistant Sessions Judge has either misunderstood or has failed to give effect to the full implication of the finding of the learned Magistrate (which I have quoted above, and which finding the learned Assistant Sessions Judge has not disturbed) that the bus was carrying passengers and the driver of the bus had the duty to reach the passengers to their destination. On the facts of the present case and upon the findings arrived at which are based on clear evidence on the record I am clearly of the view that the acts for which the two opposite parties have been found) to have been responsible did amount to wrongful restraint of the passengers as also the crew of the bus within the definition in Section 339 of the Indian Penal Code. 12. The only other reason of the learned Assistant Sessions Judge for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a public vehicle on a high road and they have been acquitted by the order of the learned Assistant Sessions Judge on errors of law. 15. But an order of acquittal cannot be set aside merely because it is based on error of law unless grave I failure of public justice has been occasioned by such order of acquittal. In the present case though the two respondents who were guilty persons have escaped legal punishment, the offence was only under Section 341 of the Indian Penal Code which was committed not for any personal gain or interest of the accused persons but only as busy-bodies who meddled in other man's affair without any justification. The inconvenience occasioned to the passengers in the bus was not intended by the two respondents though the act was done 'voluntarily' as defined in Section 339 of the Indian Penal Code. 16. Upon examination of the evidence in the case and in consideration of all the facts and circumstances established thereby t am inclined to think that though the order of acquittal has been illegal and erroneous, it has not occasioned such failure of justice as would require it to be set aside in exercise of revisional powers of this Court. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
