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 the petitioner under Section 341, Indian Penal Code.
2. The proceeding was initiated on the basis of a complaint by the opposite party No. 2 which reads as follows:
The Officer-in-Charge, Gauhati P.S.
Complainant : Sri Narottamlal 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 prayed 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 of-fence 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.
4. 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 garage. In this particular case the passage is a common path of all the brothers, the petitioner and the complainant, 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 for 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.
5. Mr. S. K. Ghose. the learned Counsel appearing on behalf of the petitioner draws my attention to a decision of the Calcutta High Court reported in AIR 1935 Cal 252 : 36 Cri LJ 740. Durga Pada Chatterjee v. Nilmani Ghose. where it was held that 'the voluntary obstruction of a vehicle cannot be held to amount to wrongful restraint within the meaning of Section 339, I. P. C.' In that case some carts loaded with paddy were obstructed by the accused persons and the accused persons did not allow the carts to proceed. On those facts prosecution was launched against the accused persons and they were convicted tinder Section 341, I. P. C. The High Court held that it was not a case under Section 339. I. P. C. in order to bring conviction under Section 341, I. P. C. and accordingly set aside the conviction.
6. Mr. T. C. Das, the learned Counsel appearing on behalf of opposite party No. 2 refers to a decision in Madhab Chandra v. Nalini Manna reported in : AIR1964Cal286 where the decision rendered in AIR 1935 Cal 252 (supra) was considered. In that case certain bus carrying passengers was proceeding towards its destination on the highway and it was obstructed by the accused. On those facts it was held that it would clearly come within the definition of Section 339 because here the passengers who were boarding on the bus were not allowed to proceed on the highway. During the course of discussion of some decisions the Court referred to a case in Pirireddigari Gopala Reddi v. N. Lakshmi Reddi reported in AIR 1947 Mad 124 : 48 Cri LJ 459 where it was observed 'With respect to the learned Judge who decided AIR 1935 Cal 252 : 39 Cal WN 143 : 36 Cri LJ 740 referred to above 1 am unable to see why the voluntary obstruction of a vehicle in which persons were travelling should not amount to the wrongful restraint of the persons in the vehicle. The fact that the person or persons may set down and they be left at liberty to proceed on their way unmolested seems to me immaterial.' But the Court observed- 'That was not the case there that any person was riding in that cart that was carrying paddy.' The above cases seem to lay down that if any person proceeding in a vehicle is obstructed that would come within the mischief of the definition of Section 339. I. P. C. But from the facts of the present case, it does not appear that any person proceeding in a vehicle is obstructed by the petitioner. The obstruction complained of is only to the car of the complainant.
7. From the complaint petition it is abundantly clear that there is no obstruction of human body in the act of put-tine the car of the petitioner in the common pathway. Therefore, it is a fit case where the proceeding of the criminal case should not be allowed to be continued. I accordingly quash the proceedings complained against. The rule is made absolute and the petition is allowed.