Criminal Application No.2801 of 1996

23rd March, 2003

Petitioner Counsel: Mr. MARWADI
Respondent Counsel: Mr. K. V. SASTE

JUDGMENT

JUDGMENT :- For taking the exception and putting the challenge to the order which has been passed by J.M.F.C., Kankavali in the matter of Criminal Case No.426/96 issuing process against the petitioners of offence punishable under section 341 read with 34 IPC, the petitioners are praying this Court for issuing a writ of certiorari and quashing the said proceeding.

2. The prosecution case in brief can be enumerated as mentioned hereinunder.

3. At Harkul Budruk in Kankavali Taluka, District-Sindhudurg there is mosque controlled and regulated by a public charitable trust, namely, "Anjuman-E-Khudamul Muslim Harkul Budrul Trust" which has been registered with the office of the Charity Commissioner, Mumbai. The said trust looks after the affairs of mosque, school and Kabristan. The petitioners are trustees of the said trust. The said office is at Mumbai and the branch office is at Harkul Budruk. The mosque in question is called "Jumma Masjid". On the day of Ramzan-Idd, as per the allegation of the original complainant - the respondent no.1, the petitioners locked the said mosque. The members of Muslim community residing in Harkul Budruk could not offer namaj on that day on account of the locking of the said mosque by the petitioners as alleged by the complainant in the said complaint. Tahasildar Kankavali and Diwakar Sawant were present and on account of that and to see that those persons could offer namaj at Ramzan-Idd day. Thereafter on Bakri-Idd day, the villagers of the said village belonging to Muslim religion apprehended that the petitioners would do the same act of locking the mosque but the petitioners, according to the version of the complainant in the complaint, gave undertaking that they would not do so, and, therefore, nothing wrong took place.

4. As per the allegation made in the complaint by the complainant, on 31.5.1996 when there was a public function in the said Jumma Masjid at about 8.00 p.m. the petitioners locked the said mosque and prevented respondent no.1 and persons belonging to his group from entering into the said mosque. Respondent no.1 and the concerned persons called police Patil and by showing him the situation, requested him to do the needful but according to the allegations of the respondent no.1, the petitioners refused to permit him and his group's men to make the entry in the said mosque and offer Namaj. The situation becomes tense. In that circumstance, the respondent no.1 - original complainant broke the lock and allowed the members of public belonging to Muslim community to offer namaj in the said mosque.

5. As per allegations made in the complaint by the respondent no.1, the said lock was given in the custody of police patil. The police arrived at the said spot at about 1 a.m. in the night and in the presence of police, the religious functions was celebrated. In view of that, the respondent no.1 filed the complaint in the Court because no action was taken by the police in that context. The learned Magistrate took the cognizance of the said complaint and issued the process against the petitioners for commission of the offence punishable under section 341 read with section 34 of IPC and that order has been assailed by this petition.

6. Shri. Marwadi submitted that some of the petitioners do reside in Mumbai and, therefore, they could not have been present at Harkul Budruk on 31.5.1996 at 8.00 p.m. as alleged by respondent no.1 - the original complainant. He submitted that the learned Magistrate did not take into consideration this aspect and, therefore, committed the error in issuing the process at least against respondent nos.2, 3 and 10. Shri. Marwadi submitted that no offence was disclosed by the complainant so far as other petitioners are concerned.

7. Shri. Saste submitted that the petitioners who are residing at Mumbai as per their contention could go to Harkul Budruk on that day from Mumbai and, therefore, they could have been present as alleged by the complainant. He submitted that unless the trial is conducted, it would not be clear as to whether they were present at Harkul Budruk as alleged by the complainant. Shri. Saste justified the impugned order as correct, proper and legal.

8. Section 339 of IPC defines the offence of wrongful restraint which is punishable in view of section 341 of IPC. Section 339 indicates that 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 has been provided which indicates that 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. Further, an illustration has been given which says : "A obstructs a path along which Z has a right to pass. A not believing in good faith that he has a right to stop the path Z is thereby prevented from passing. A wrongfully restrains Z." Section 341 provides that whoever wrongfully restrains any person, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.

9. Every person professing Islam has a right to offer namaj in a public mosque according to religious faith and belief and the traditions. The Jumma Masjid, the mosque in question, happens to be a public mosque. Therefore, prima facie the trustees of the said mosque had no right to lock the doors of it for preventing the other persons of Harkul Budruk from entering into the said mosque for offering namaj and worshiping God as per Islam faith, belief and traditions. But as alleged by respondent no.1, the petitioners, the trustees, locked it and prevented respondent no.1 and his party men from entering into the said mosque for offering namaj and worshiping the God. The complaint has to be read as it is and the allegations made by the complainant in the complaint have to be read as they are and the Magistrate has to apply judicial mind and to find out whether an offence indicated by the provisions of IPC has been spelt out prima facie or not. If he is satisfied that such an offence has been spelt out, it is his duty to take the cognizance of such complaint and to take every legal steps as indicated by the Code by issuing the process against the accused named in the said complaint. It is nowhere stated in the said complaint that any number of the accused are residing at Mumbai. In the complaint the residential place of at all the accused has been shown to be Harkul Budruk. Furthermore, an allegation has been made that all the accused were present on 31.5.1996 at about 8.00 p.m. to 1.00 a.m. in the night. Therefore, there was nothing on record to inform the learned Magistrate that some of the accused were residing at Mumbai. For showing that some of the accused were not present at Harkul Budruk, those accused will have to make out a case of their alibi and to satisfy the learned Magistrate that on 31.5.1996 between 8.00 pm. and 1.00 am. they were not present at Harkul Budruk near the said Jumma mosque.

10. Whoever obstructs a person from proceeding to a direction to which that person has a right to proceed, commits an offence of wrongful restraint. While dealing with the offence which is punishable under section 341 of IPC and which has been defined by section 339 of IPC the Court is obliged to see following ingredients.

(1) Whether the person so obstructed had a lawful right to proceed to a direction to which he has been obstructed;

(2) Whether such obstruction was for enforcement of a legal right of the obstructor.

(3) Whether such obstructor obstructed such person in good faith.

It has to be kept in mind that nothing can be said to be done in good faith which is not done with due care and caution. If these ingredients are indicated by the complaint, the Magistrate is obliged to take the cognizance of the complaint so presented before him unless there are the other grounds for acting otherwise which has to be justified by reasons recorded in writing.

11. In this matter, this Court finds that the concerned police were late in reaching the sensitive spot in that sensitive situation. It is the duty of the police machinery to arrive at such sensitive spot and in such sensative situation as early as possible. They have to keep in mind that such incidents spark out communal riots, may be between the members of different religion or may be between the members of the same religion and the persons who generally suffer are poor innocent and hapless persons. They have to keep it in mind that a stitch in time saves nine.

12. The observations made by this Court in this judgment should not weigh at the time of trial while appreciating the evidence and adjudicating the guilt or innocence of the accused.

13. In the present case this Court finds that the learned Magistrate has committed no error whatsoever. Therefore, this petition has to be dismissed and it stands dismissed.

Petition dismissed.