Madras High Court
Dr.V.Kalanidhi vs The State Of Tamil Nadu on 3 December, 2021
CRL.O.P.No.23524 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.12.2021
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.O.P.No.23524 of 2021
Dr.V.Kalanidhi ... Petitioner
Versus
The State of Tamil Nadu,
Rep. by Inspector of Police,
Aminjikarai Police Station K-3,
Chennai. ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of the Code
of Criminal Procedure, to call for the records pertaining to the FIR in
Crime No.491 of 2017 and the Final Report filed on 22.11.2021 in
C.C.No.34 of 2021 in Crime No.491 of 2017 pending before the
Additional Special Court for Trial of Criminal Cases related to Elected
Members of Parliament and Members of Legislative Assembly of Tamil
Nadu and quash the same.
For Petitioner : Mr.P.Wilson, Senior Counsel for
M/s.P.Wilson Associates
For Respondent : Mr.E.Raj Thilak, APP
*****
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in C.C.No.34 of 2021, on the file of the Additional Special
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CRL.O.P.No.23524 of 2021
Court for Trial of Criminal Cases related to Elected Members of
Parliament and Members of Legislative Assembly of Tamil Nadu,
Chennai.
2.The gist of the case is that on 13.03.2017, at about 10.00 a.m.,
the Sub Inspector of Police attached to the respondent Police Station
along with the Police party were on duty near Aminjikarai, at that time,
the petitioner/A3 along with 25 persons unlawfully assembled before the
Fair Price Shop-052, Aminjikarai without any permission from the
authorities concerned and raised slogans against the Government. When
the 2nd respondent intervened and insisted them to disperse, the petitioner
and other accused failed to do so. Hence, a complaint was lodged and on
completion of investigation charges sheet came to be filed before the
learned Additional Special Court for Trial of Criminal Cases related to
Elected Members of Parliament and Members of Legislative Assembly of
Tamil Nadu, Chennai against the petitioner/A3 and five other accused
and the same was taken on file as C.C.No.34 of 2021.
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CRL.O.P.No.23524 of 2021
3.The learned counsel for the petitioner submitted that in this case,
except LW1 and LW2, other witnesses/LW3 to LW5 are public servants.
The case of the prosecution is that the petitioner along with other accused
assembled before the Fair Price Shop, which is a public place and made
protest for not providing ration articles. It is highly improbable that no
public witness was present in the place of occurrence and no reason has
been given for non examination of public witnesses, except LW1 and
LW2. In this case, the FIR in Crime No.491 of 2017 was registered for
offence under Sections 143, 341 and 188 IPC. As per Section 188 IPC,
only the public servant is authorized to lodge a complaint and Section
195 Cr.P.C is clear embargo as to how a complaint to be registered and
investigated by the Police for offence under Section 188 IPC. In this
case, there is no complaint from the public servant. Hence, the
registration of the FIR its void ab initio and continuation of investigation
for other offences is also not permitted.
4.The learned counsel for the petitioner further submitted that this
Court in catena of judgments have clearly held that the Police personnels
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CRL.O.P.No.23524 of 2021
are not empowered to register an FIR under Section 188 IPC. There is
nothing to show that on the date of occurrence, there was any prohibitory
order in force and whether that order was communicated in the
prescribed manner is also not known. The learned counsel further
submitted that this Court in the cases of “Madhan Mohan Versus The
State and another in Crl.O.P.Nos.23129 & 23127 of 2019” on the
similar grounds, quashed the proceedings against the accused. Further,
in the case of “Jeevanandham and others Vs. State Rep. by Inspector of
Police and another reported in (2018) 2 LW Crl. 606”, had given an
authoritative pronouncement regarding the cases to be registered and
investigated under Section 188 IPC and also issued certain guidelines,
which is violated in this case.
5.The learned counsel for the petitioner further submitted that the
petitioner and other accused raised slogans and held demonstration
against the Government for the ineffectiveness in distribution of ration
articles, which cannot be construed as unlawful act. Right to Dissent is
the Hallmark of Democracy, the petitioner and other accused only
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CRL.O.P.No.23524 of 2021
expressed their displeasure which is their fundamental right. Hence, he
prayed for quashing of the proceedings against the petitioner.
6.The learned Additional Public Prosecutor appearing for the
respondent submitted that in this case, a complaint was lodged by the
respondent Police. When he was on patrol duty along with other Police
personnels, the petitioner/A3 and others had assembled and raised
slogans against the Government and also caused disturbance to the
public. Timely intervention of the respondent Police, further law and
problem was averted. The petitioner and other accused without getting
permission from the authorities concerned have formed themselves into
unlawful assembly, restrained the others and caused public disturbance.
On completion of investigation, charge sheet has been filed in this case.
7.Considering the rival submissions and on perusal of the
materials, this Court finds that the petitioner and other accused only
raised their objection with regard to the shortage and non supply of ration
articles to the general public. The purpose for having a ration shop is to
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CRL.O.P.No.23524 of 2021
make available the essential items for the needy persons, at affordable
price. Raising slogans against the Government itself would not amount
to any commission of offence, which is a fundamental right under
Constitution of India.
8.From the statement of the witnesses, it is seen that LW1 to LW5
present in the scene of occurrence and according to them, the petitioner
and other accused raised slogans against the Government with regard to
shortage of non supply of ration articles, other than that they did nothing.
Admittedly in this case, the occurrence had taken place in the public
place, except LW1 and LW2 no public or independent witnesses
examined by the prosecution, which causes serious doubt on the veracity
of the complaint. Further, this Court in the case of “Jeevanandham and
others Vs. State Rep. by Inspector of Police and another reported in
(2018) 2 LW Crl. 606” had clearly held that the Police officials are not
empowered to register a case under Section 188 IPC and the same is
barred under Section 195 Cr.P.C. There is no material to show that there
was any promulgation of any prohibitory order which was communicated
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CRL.O.P.No.23524 of 2021
to the public and there was any disobedience by the petitioner and other
accused. Further, in consequence to the protest, the prosecution failed to
show whether any trouble injuries occurred. Thus, the respondent Police
did not follow the guidelines issued by this Court in Jeevanandham
(Cited Supra). In several cases, this Court quashes the proceedings
against the accused/protesters on the similar ground.
9.In the result, the proceedings in C.C.No.34 of 2021, on the file of
the Additional Special Court for Trial of Criminal Cases related to
Elected Members of Parliament and Members of Legislative Assembly of
Tamil Nadu, Chennai is hereby quashed against the petitioner and other
accused. This Criminal Original Petition is allowed, accordingly.
03.12.2021
Index: Yes/No
Internet: Yes/No
vv2
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CRL.O.P.No.23524 of 2021
M.NIRMAL KUMAR, J.
vv2
To
1.The Additional Special Court for Trial of Criminal Cases
related to Elected Members of Parliament and Members of
Legislative Assembly of Tamil Nadu,
Chennai.
2.The Inspector of Police,
Aminjikarai Police Station K-3,
Chennai.
3.The Public Prosecutor,
High Court, Madras.
CRL.O.P.No.23524 of 2021
03.12.2021
https://www.mhc.tn.gov.in/judis
