The prosecution must establish all the ingredients of an offence to find a person guilty of the said offence.

K.Hema, J,

1.This petition is to quash Annexure-I charge-sheet submitted by the police against the petitioners herein. A crime was registered as crime No. 56/2004 against the petitioners under Sections 143,147, 341 and 353 read with Section 149 of the IPC.

2.As per the charge-sheet Annexure-I, on 31/1/2004 at about 6 p.m. accused Nos. 1 to 27 formed into an unlawful assembly with a common object of obstructing the pick up van in which the waste is being brought and also CW 1 and others, who were the sanitary workers in the Municipality, and in prosecution of the common object, they wrongfully restrained CW 1 and others, and deterred them who are public servants from discharging their duty.

3.The learned counsel appearing for the petitioner submitted that offences under Section 353 and 341 will not lie since the ingredients of the offences are not made out from what is stated in the charge. Since such offences are not made out, offence under Section 143 also will not lie, it is submitted. First of all, to attract Section 353 of the Indian Penal Code, there must be allegation that the accused assaulted or used criminal force to a public servant. But, in this case, there is no whisper that any criminal force or assault was made against any public servant.

4. As far as offence under Section 341 of the IPC is concerned, a person, who wrongfully restrains another, will be liable for punishment under the said Section. Wrongful restraint is defined in Section 349 of the IPC. As per the said provision, to constitute wrongful restraint, there must be material to show that the person, who is obstructed, was prevented from proceeding in any direction in which he has the right to proceed. Therefore, the right of the victim to proceed in a particular direction must be alleged in the charge-sheet, it is submitted. According to the learned defence counsel, a writ petition was filed by the first petitioner herein, seeking certain directions against the Municipality, District Collector, Kerala State Pollution Control Board, Environmental Engineer, etc. He filed a petition as the Secretary of Janakeeya Parisara Raksha Samithi.

5. According to the petitioner. Payyannur Municipality started a plan called "Malinya Samskarana Kendram" in Moorikkoval for the purpose of disposal of solid waste collected from the entire Municipality. But, the waste was being disposed of in such a manner which created environmental pollution. The waste was being dumped in a residential area which caused several difficulties to the persons who are residing in the locality. They were not even able to drink or breath unpolluted water or air. After hearing both sides, this Court found in the Judgment in the writ petition that the last date fixed for identification of landfill sides for future use was 31/12/2001 (vide paragraph 21 in Sumit v. Payyannur Municipality, 2004(1) KLT438. It was also observed by a Division Bench of this Court in that decision that setting up of waste processing and disposal facilities is to be completed by 31/12/2003. But, neither of these mandates were complied with by the Municipality, in spite of the direction issued by this Court in the above decision, it is submitted.

6.Learned counsel for the petitioners also brought to my notice that the second respondent was directed to take all necessary action for implementing provisions of the Act for the purpose of disposal of solid waste and, in particular, to see that the vermin compositing plant functions effectively and non biodeg ratable waste is segregated and sent as far as possible for recycling waste, which cannot be recycled, is to be removed to landfill sides fulfilling the requirements of law as expeditiously as possible. These directions were issued as early as on 04/09/2003. But, in spite of such directions, nothing was done by the Municipality and they continued to dumb the waste in Moorikoval.

7.A petition was, therefore, moved for taking action for contempt and it is still pending as COC