Madras High Court
Eswaran vs State Rep. By on 2 July, 2021
Crl.O.P.(MD)No.8711 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.8711 of 2021
and Crl.M.P.(MD) No.4462 of 2021
1. Eswaran
2. Rupavathi
3. Shanthi
4. Devika
5. Chandra ... Petitioners
Vs.
1. State Rep. by
The Inspector of Police,
City South Police Station,
Dindigul.
(Crime No.242 of 2017)
2. Senthil Prabu ... Respondent
PRAYER : Criminal Original Petition is filed under Section 482 of
Cr.P.C, to call for the records pertaining to the case in S.T.C.No.74 of
2018 on the file of the learned Judicial Magistrate No.III, Dindigul in
Crime No.242 of 2017 on the file of the respondent Police and quash the
same as illegal insofar as the petitioners are concerned.
For Petitioners : Mr.B.Arun
For R-1 : Mr.R.M.Anbunidhi
Additional Public Prosecutor
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Crl.O.P.(MD)No.8711 of 2021
ORDER
This petition has been filed to call for the records pertaining to the
case in S.T.C.No.74 of 2018 on the file of the learned Judicial Magistrate
No.III, Dindigul in Crime No.242 of 2017 on the file of the respondent
Police and quash the same as illegal insofar as the petitioners are
concerned.
2. The case of the prosecution is that on 04.07.2017, the
petitioners and others conducted a rally with empty pots by demanding
and protesting against the non-supply of drinking water to their locality
on Madurai-Dindigul Main Road. On the basis of the complaint given by
the Village Administrative Officer in Adivanuthu Village, a case in Crime
No.242 of 2017, for the offences under Sections 341, 143 and 188 of IPC
was registered and investigation was taken up and materials were also
collected. After completing the investigation, the final report was also
filed and it was taken on file as S.T.C.No.74 of 2018. Challenging the
final report, this petition has been filed seeking quashment of the same.
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Crl.O.P.(MD)No.8711 of 2021
3. The learned counsel appearing for the petitioners submitted that
the protest was made for demanding basic amenities, i.e. supply of
drinking water, which is protected under the Constitution of India and
there is no allegation on the side of the prosecution that the protest made
by the petitioners turned violence at that time. So, according to him,
none of the allegations mentioned in the final report attract any of the
offence mentioned in it against the petitioners.
4. There are three offences alleged as against the petitioners. One
of the offences alleged against the petitioners is Section 188 of IPC. In a
Judgment of this Court, reported in 2018 2 LW (Crl.) 606
[Jeevanandham and others vs. Inspector of Police, Sivakasi Town
Police Station, virudhunagar District], it has been held that the offence
under Section 188 IPC is not a cognizable offence, in respect of which,
the Police cannot register FIR and conduct investigation, without the
permission of the concerned Jurisdictional Magistrate. Here, there is no
record to show that permission has been obtained from the concerned
Jurisdictional Magistrate. Therefore, the offence under Section 188 of
IPC cannot be proceeded against the petitioners.
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Crl.O.P.(MD)No.8711 of 2021
5. The next offence alleged against the petitioners is Section 341
of IPC. There is no allegation to the effect that the petitioners indulged
in preventing the movement of Public at the traffic in that area. What
they did was only the peaceful protest demanding supply of water to their
area.
6. The next offence alleged against the petitioners is Section 143
of IPC. To attract the offence under Section 143 of IPC, the ingredients
of Section 141 IPC must be established, which is extracted hereunder:
“ 141.Unlawful assembly – An assembly of
five or more persons is designated and 'unlawful
assembly', if the common object of the persons
composing that assembly is -
First – To overawe by criminal force, or
show of criminal force, (the Central or any State
Government or Parliament or the Legislature of any
State), or any public servant in the exercise of the
lawful power of such public servant; or
Second – To resist the execution of any law,
or of any legal process; or
Third – To commit any mischief or criminal
trespass, or other offence; or
Foruth – By means of criminal force, or
show of criminal force, to any person, to take or
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Crl.O.P.(MD)No.8711 of 2021
obtain possession of any property, or to deprive any
person of the enjoyment of a right of way, or of the
use of water or other incorporeal right of which he
is in possession or enjoyment, or to enforce any
right or supposed right; or
Fifth – By means of criminal force, or show
of criminal force, to compel any person to do what
he is not legally bound to do, or to omit to do what
he is legally entitled to do.
Explanation – An assembly which was not unlawful when it
assembled, may subsequently become and unlawful assembly.”
7. A reading of the final report shows that the petitioners had no
intention to do illegal activities at the time of protest. So, the assembly
of persons for the purpose of demanding basic amenities would not
amount any illegal act. So, none of the allegations are mentioned in the
final report to attract the ingredients under Section 141 IPC.
8. Since none of the allegations mentioned in the final report
attract any offence as alleged against the petitioners, the final report in
S.T.C.No.74 of 2018 on the file of the learned Judicial Magistrate No.III,
Dindigula, is liable to be quashed and the same is hereby quashed.
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Crl.O.P.(MD)No.8711 of 2021
9. Accordingly, this Criminal Original Petition is allowed.
Consequently, connected miscellaneous petition is closed.
02.07.2021
Index : Yes/No
Internet : Yes/No
ogy
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy of
the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
1. The learned Judicial Magistrate No.III,
Dindigul.
2. The Inspector of Police,
City South Police Station,
Dindigul.
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.8711 of 2021
G.ILANGOVAN. J.
ogy
Crl.O.P.(MD)No.8711 of 2021
02.07.2021
https://www.mhc.tn.gov.in/judis/
