Madras High Court
C.Vetrivelchezhiyan vs State Rep.By on 1 December, 2021
1 Crl.O.P.No.20426 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.12.2021
CORAM
THE HON'BLE MRS. JUSTICE T.V. THAMILSELVI
Crl.O.P.No.20426 of 2019
and
Crl.M.P.No.10511of 2019
C.Vetrivelchezhiyan ... Petitioner
Versus
1.State rep.by
The Sub Inspector of Police,
K11 CMBT Police Station,
Koyembedu, Chennai 600 107.
Crime No.627 of 2018.
2.N.Rajasingh ... Respondents
Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C.,
praying to call for the records pertaining to the charge sheet in C.C.No. 646
of 2019 on the file of the learned Metropolitan Magistrate – V, Egmore,
Chennai in crime No. 627 of 2018 on the file of the 1 st respondent and
quash the same.
https://www.mhc.tn.gov.in/judis
2 Crl.O.P.No.20426 of 2019
For Petitioner : Mr.R.Sankarasubbu
for A.Suresh Sakthi Murugan
For R1 : Mr.A.Gokula Krishnan
Additional Public Prosecutor
For R2 : Service Awaited
ORDER
This petition has been filed seeking to quash the proceedings in
C.C.No.646 of 2019 on the file of the learned Metropolitan Magistrate – V,
Chennai.
2. The case of the prosecution is that on 22.05.2018, the petitioner
and 41 others were standing nearer to MTC In & Out Gate, Koyembedu
Bus Stand without any prior notice to the respondent police and they raised
slogans against the police who was firing at Thoothukudi in the anti Sterlite
protest and they disturbed the general public and transportation. while the
respondent police asked the petitioners to disperse, they scolded the police
personnel and pushed down the traffic barricades and caused damaged to
the public property worth about Rs.25,000/ and prevented the Government
officials from doing their duty. Hence, the complaint.
https://www.mhc.tn.gov.in/judis
3.The learned counsel for the petitioner submits that as per the final
report the petitioners were charged under Sections 143, 188, 353 IPC r/w 3
of TNPPDL Act, but the above charges were not applicable to the present
case and he also relied upon the decision reported in Jeevanandam V.
State, (Madras) (Madurai Bench) 2018 (2) LW (Crl.) 606 : 2019 (1)
MLJ (Criminal) 36 which reads as follows;
25.In view of the discussions, the following
guidelines are issued insofar as an offence under Section
188 of IPC, is concerned:
a)A Police Officer cannot register an FIR for any of the
offences falling under Section 172 to 188 of IPC.
b)A Police Officer by virtue of the powers conferred
under Section 41 of Cr.P.C will have the authority to take
action under Section 41 of Cr.P.C., when a cognizable
offence under Section 188 IPC is committed in his
presence or where such action is required, to prevent such
person from committing an offence under Section 188 of
IPC.
c)The role of the Police Officer will be confined only to
the preventive action as stipulated under Section 41 of
Cr.P.C and immediately thereafter, he has to inform
about the same to the public servant
concerned/authorised, to enable such public servant to
give a complaint in writing before the jurisdictional
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Magistrate, who shall take cognizance of such complaint
on being prima facie satisfied with the requirements
of Section 188 of IPC.
d)In order to attract the provisions of Section 188 of
IPC, the written complaint of the public servant
concerned should reflect the following ingredients
namely;
i) that there must be an order promulgated by the public
servant;
ii) that such public servant is lawfully empowered to
promulgate it;
iii)that the person with knowledge of such order and
being directed by such order to abstain from doing
certain act or to take certain order with certain property
in his possession and under his management, has
disobeyed; and
iv)that such disobedience causes or tends to cause;
(a) obstruction,annoyance or risk of it to any person
lawfully employed; or
(b) danger to human life, health or safety; or
(c) a riot or affray.
e)The promulgation issued under Section 30(2) of the
Police Act, 1861, must satisfy the test of reasonableness
and can only be in the nature of a regulatory power and
not a blanket power to trifle any democratic dissent of
the citizens by the Police.
f)The promulgation through which, the order is made
known must be by something done openly and in public
and private information will not be a promulgation. The
order must be notified or published by beat of drum or
in a Gazette or published in a newspaper with a wide
circulation.
g)No Judicial Magistrate should take cognizance of a
Final Report when it reflects an offence under Section
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172 to 188 of IPC. An FIR or a Final Report will not
become void ab initio insofar as offences other
than Section 172 to 188 of IPC and a Final Report can
be taken cognizance by the Magistrate insofar as
offences not covered under Section 195(1)(a)(i) of
Cr.P.C.
h)The Director General of Police, Chennai and
Inspector General of the various Zones are directed to
immediately formulate a process by specifically
empowering public servants dealing with for an offence
under Section 188 of IPC to ensure that there is no
delay in filing a written complaint by the public servants
concerned under Section 195(1)(a)(i) of Cr.P.C.
This Court will now proceed to deal with the
independent cases
26. Crl.O.P.(MD).Nos. 11834, 15529, 15644, 15621,
16244, 16208, 16075 of In all these cases, it is seen that
a Final Report has been filed for an Offence
under Section 188 and 143 of IPC and cognizance has
also been taken by the concerned Judicial Magistrates.
In view of the above discussion, the cognizance of the
Final Report under Section 188 of IPC is liable to be
quashed. Insofar as the offence under Section 143 of
IPC is concerned, in all the cases, the concerned Police
Officer has quoted Section 30(2) of the Police Act, and
therefore, has straight away proceeded to register an
FIR under Section 143 of IPC. As stated above, a mere
violation of the so-called promulgation under Section
30(2) of the Police Act will not make out an offence
under Section 143 of IPC by straight away declaring an
assembly of persons to be an unlawful assembly. The
power under Section 30(2) of the Police Act is merely
regulatory in nature. In fact, Section 32 of the Police Act
itself provides for a penalty for disobeying an order
issued under Section 30(2) of the Police Act with a
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punishment of a fine not exceeding 200 rupees. Where
as an offence under Section 143 of IPC is punishable
with imprisonment for a term which may extend to 6
months. Therefore, a violation of the so-called
promulgation under Section 30(2) of the Police Act will
not by itself constitute an offence under Section 143 of
IPC. In all the cases, the assembly of persons were made
to express dissatisfaction of the governance and
claiming for minimum rights that are guaranteed to a
ordinary citizen. If such an assembly of persons are to
be trifled by registering an FIR under Section 143 of
IPC and filing a Final Report for the very same offence,
no democratic dissent can ever be shown by the citizens
and such prohibition will amount to violation of
fundamental rights guaranteed under the Constitution.
2.Therefore, the Final Report for an offence
under Section 143 of IPC is hereby quashed.
Accordingly, all the Criminal Original petitions are
allowed, and the Final Report filed in each of the case is
hereby quashed.
27. Crl.O.P.(MD)Nos.1356,14873,14785 and 15866 of
2018 In all these cases, it is seen that a Final Report has
been filed for an Offence under Section 188 and 143 of
IPC and cognizance has also been taken by the
concerned Judicial Magistrates. In view of the above
discussion, the cognizance of the Final Report
under Section 188 of IPC is liable to be quashed.
Insofar as the offence under Section 143 of IPC is
concerned, in all the cases, the concerned Police Officer
has quoted Section 30(2) of the Police Act, and
therefore, has straight away proceeded to register an
FIR under Section 143 of IPC. As stated above, a mere
violation of the so called promulgation under Section
30(2) of the Police Act will not make out an offence
under Section 143 of IPC by straight away declaring an
https://www.mhc.tn.gov.in/judis
assembly of persons to be an unlawful assembly. The
power under Section 30(2) of the Police Act is merely
regulatory in nature. In fact, Section 32 of the Police Act
itself provides for a penalty for disobeying an order
issued under Section 30(2) of the Police Act with a
punishment of a fine not exceeding 200 rupees. Where
as an offence under Section 143 of IPC is punishable
with imprisonment for a term which may extend to 6
months. Therefore, a violation of the so called
promulgation under Section 30(2) of the Police Act will
not by itself constitute an offence under Section 143 of
IPC. In all the cases, the assembly of persons were made
to express dissatisfaction of the governance and
claiming for minimum rights that are guaranteed to a
ordinary citizen. If such an assembly of persons are to
be trifled by registering an FIR under Section 143 of
IPC and filing a Final Report for the very same offence,
no democratic dissent can ever be shown by the citizens
and such prohibition will amount to violation of
fundamental rights guaranteed under the Constitution.
2.In these cases, the informant and the investigator are
one and the same person. Therefore, there was no fair
investigation in these cases. This issue is covered by the
judgment of the Hon'ble Supreme Court in Mohanlal
.Vs. The State of Punjab in Crl.A.No.1880 of 2011
referred supra. Therefore, the Final Report for an
offence under Section 143 of IPC is hereby quashed.
Accordingly, the Criminal Original petitions are
allowed, and the Final Report filed in each of the case is
hereby quashed.
and he also relied upon the decision reported in Manik Taneja V State of
Karnataka (2015) 7 Supreme Court Cases 423 which reads as follows;
https://www.mhc.tn.gov.in/judis
10.So far as the issue regarding the registration of FIR
under Section 353 IPC is concerned, it has to be seen
whether by posting a comment on the Facebook of the
traffic police, the conviction under that Section could be
maintainable. Before considering the materials on
record, we may usefully refer to Section 353 IPC which
reads as follows:- "353. Assault or criminal force to
deter public servant from discharge of his duty.-
Whoever assaults or uses criminal force to any person
being a public servant in the execution of his duty as
such public servant, or with intent to prevent or deter
that person from discharging his duty as such public
servant, or in consequence of anything done or
attempted to be done by such person in the lawful
discharge of his duty as such public servant, shall be
punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with
both."
12. A reading of the above provision shows that the
essential ingredients of the offence under Section
353 IPC are that the person accused of the offence
should have assaulted the public servant or used
criminal force with the intention to prevent or deter the
public servant from discharging his duty as such public
servant. By perusing the materials available on record,
it appears that no force was used by the appellants to
commit such an offence. There is absolutely nothing on
record to show that the appellants either assaulted the
respondents or used criminal force to prevent the
second respondent from discharging his official duty.
Taking the uncontroverted allegations, in our view, that
the ingredients of the offence under Section 353 IPC are
not made out.
4. He further pointed out with regard to the damages under Section 3
of TNPPDL Act, the prosecution has not furnished any material to show
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how the damages caused to the barricades and as per seizure mahazar no
barricades were recovered by the prosecution to support the case and he
produced the copy of the mahazar.
5. The respondent police has produced Seizure Mahajar which reads
as follows:
“rk;gtaplkhzJ nf/11 rp/vk;/gp/o fhty; epiya
vy;iyf;Fl;laplkhFk;/ rk;gtaplkhdJ nf/11 rp/vk;/gp/o fhty;
epiyaj;jpypUe;J Rkhh; ½ fp/kp/ tlf;fhf mike;Js;sJ/
rk;gttplj;jpd; tlf;fhf njth;bk!; Xl;ly; . UjpkPdh ouhty;!;.
bgl;nuhy; g';f; kw;Wk; gpshl;ghuk; $tcwfh;yhy; rhiy
fpHf;fpypUe;J nkw;fhf jpUk';fsk; nehf;fpa[k; nkw;fpypUe;J
fpHf;fhf mUk;ghf;fk; nehf;fpa[k; bry;fpwJ/ rk;gtaplj;jpd;
bjw;fhf nfhak;ngL EiHthapypy; ,Ue;J tlf;fhf btspnaa[k;
bjw;fhf cs;nsa[k; g!;fy; te;J bry;fpd;wd/ ,t;thwhf
rk;gtaplkhdJ mike;Js;sJ”.
6. As per the final report the petitioner along with others damaged
the ten barricades worth about Rs.25,000/-, but as on record no material
was furnished on the side of the prosecution to prove the barricades were
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damaged by the accused persons, but the prosecution raised objection
stating that they did not mention correct figures of the damages. But at the
time of protest barricades were already damaged so they are not liable to
charges under Section Section 3 of TNPPDL Act . On perusal of records
even after filing the final report there is no material to prove the contention
of the prosecution that the petitioner along with others damaged the
barricades which is worth about Rs.25,000/- . Though as per the witness
statement namely Asath Ali who stated that he received a sum of
Rs.3,000/- fees for welding the barricades, he has not stated anything with
regard to the damages of the barricades. Therefore, the said statement was
not acceptable .
7. As far as Charges under Sections 143, 138 of IPC is concerned,
the learned counsel for the petitioners relied upon the decision in
“Jeevanandam V. State, (Madras) (Madurai Bench) 2018 (2) LW
(Crl.) 606 : 2019 (1) MLJ”
as per the above Judgment, the petitioners are not liable to be charged
under Section 143 and 138 of IPC.
https://www.mhc.tn.gov.in/judis
8. With regard to the offence under Section 353 of IPC, the learned
counsel for the petitioner submits that only the petitioner along with others
where indulged in the protest, and they have not prevented the public
authorities from doing their duties. On perusal of the report submitted by
the prosecution reveals that on the alleged date of occurrence, the petitioner
along with others made protest against the Gun fire in Thuthukudi Sterlite
Corporation protest, before the koyembadu Bus stand and raised protest
against the above incident, but, nowhere, they have mentioned specifically
that they have prevented the police from doing their duty and therefore, the
charges under Section 353 of IPC is not made out. Further more the
proceedings in C.C.No. 646 of 2019 on the file of the Metropolitan
Magistrate – V, Egmore is quashed and the proceedings pending against the
other 42 accused were quashed.
8. In view of the above, the Criminal Original Petition is allowed and
the proceedings in C.C.No.646 of 2019 pending on the file of Metropolitan
Magistrate – V, is hereby quashed. Consequently, connected
Crl.M.P.No.10511of 2019 is also closed.
01.12.2021
https://www.mhc.tn.gov.in/judis
pbl
To
1.The Additional District and Sessions Judge,
Villupuram.
2.The Inspector of Police,
Valathy Police Station, Villupuram District.
3. The Public Prosecutor,
Madras High Court, Chennai.
https://www.mhc.tn.gov.in/judis
T.V.THAMILSELVI, J.
pbl
Crl.O.P.No.20426 of 2019
01.12.2021
https://www.mhc.tn.gov.in/judis
