In this revision petition, petitioners have called in

question the impugned Order dated 26.10.2018, passed by

the Court of XLIII Additional Chief Metropolitan Magistrate,

Mayo Hall Unit, Bengaluru, in C.C. No.57847/2017,

rejecting their application filed under Section 239 of Cr.P.C.

and thereby refusing to discharge them for the offence

punishable under Section 353 r/w 34 of IPC.

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Heard the learned counsel for petitioners and

the

learned

High

Court

Government

Pleader

for

respondent/State and perused the material on record.

3.

Brief facts leading to filing of this revision

petition are as under:

On

09.04.2017,

during

night

hours,

the

first

informant viz, the Police Inspector, HAL Airport Traffic

Police Station, Bengaluru, while on patrolling duty, received

an information that few persons have damaged a car near

Big Bazar at Doddanekkundi. Immediately, he went to the

spot, but found that those persons had fled away. The

beat Police as well as the Hoysala vehicle had also come to

the spot. Thereafter, at about 3.00 a.m., he noticed a

person [A2] moving in a suspicious manner on a

motorcycle bearing reg. No.KA-03/JK-1178. When he was

being enquired, the said person secured his friend by name

Priyamshu Kumar-[A1]. Accused No.2 had consumed

alcohol and refused to accompany the Police to the Police

Station and tried to escape. His friend, accused No.1,

slapped on the face of the first informant and both of them

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prevented him from discharging his duty. Therefore, with

the help of the public, both the accused were apprehended

and a case of drunken driving was registered and the bike

was seized.

4.

On the basis of a complaint lodged by the Police

Inspector of HAL Airport Traffic Police Station, a case was

registered in Crime No.155/2017 of Mahadevapura Police

Station, against accused Nos.1 and 2 for the offence

punishable under Section 353 r/w 34 of IPC. Charge-sheet

was filed against them for the said offence.

5.

The application filed by the petitioners under

Section 239 of Cr.P.C. seeking their discharge was

dismissed by the trial Court, which is under challenge in

this revision petition.

6.

The learned counsel for the petitioners would

contend that first of all, the ingredients of the offence

alleged against the petitioners are not made out. He

submits that there is a circular issued by the Office of the

Additional Commissioner of Police [Traffic], according to

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which, under no circumstances, fine amount could be

collected by the traffic Police in a case of drunken driving

and the Hon9ble Court is the authority which decides the

fine amount. He submits that as per the said circular, the

checking activity should be videographed. He submits that,

in the present case, admittedly, the incident was not

videographed and the Police have imposed the fine for

drunken driving without any authority. He therefore

contends that at no stretch of imagination, it could be said

that the complainant was discharging his official duty and

therefore, the ingredients of Section 353 of IPC are not

made out.

7.

The learned counsel for the petitioners would

further contend that according to the prosecution, there

were several public present at the spot. However, none of

them are cited as witnesses. The charge-sheet is filed only

on the basis of the statements of the first informant and

two other Police Constables, without naming any eye-

witnesses.

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8.

It is also contended by the learned counsel that

at the stage of considering an application for discharge, the

Court is required to evaluate the material on record with a

view to find out if the facts emerging therefrom taken at

their face value discloses the existence of all the

ingredients constituting the alleged offence and for this

limited purpose, the Court can sift the evidence.

9.

The learned High Court Government Pleader on

the other hand, would support the impugned order

contending that the petitioners have prevented the first

informant from discharging his duty and accused No.1 h