Gowtham @ Gowthaman vs The State Rep By
2021 Latest Caselaw 13295 Mad

                                                                             Crl.O.P.(MD)No.8803 of 2021


                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  DATED : 06.07.2021

                                                       CORAM :

                                   THE HONOURABLE Mr. JUSTICE G.ILANGOVAN

                                           Crl.O.P.(MD)No.8803 of 2021
                                    and Crl.M.P(MD)Nos.4526 and 4427 of 2021
                     1.Gowtham @ Gowthaman
                     2.Gowtham @ Gowtham
                     3.Praveen
                     4.Babu                         ... Petitioners 1 to 4/Accused 1,3,6 & 7
                                                           Vs.
                     1.The State rep by
                     Rep. by Inspector of Police,
                     Town North Police Station,
                     Dindigul Town,
                     Dindigul District.
                     (Crime No.522 of 2016)         ... 1st Respondent/Complainant

                     2.Gnanasekaran                   ... 2nd Respondent/Defacto Complainant

                     Prayer : Criminal Original Petition filed under Section 482 of the Code of

                     Criminal Procedure, to call for the records in connection with the impugned

                     charge sheet in C.C.No.519 of 2016 pending on the file of the learned

                     Judicial Magistrate Court No.2, Dindigul, Dindigul District and quash the

                     same in so far as the petitioners are concerned.

                                    For Petitioners   : Mr.Sarvagan Prabhu
                                    For R1            : Mr.R.M.Anbunithi,
                                                        Additional Public Prosecutor




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                                                                                 Crl.O.P.(MD)No.8803 of 2021


                                                           ORDER

This petition is filed seeking a direction to quash the charge sheet in

C.C.No.519 of 2016 pending on the file of the learned Judicial Magistrate

Court No.2, Dindigul, Dindigul District

2. Heard the learned counsel for the petitioners and the learned

Additional Public Prosecutor appearing for the first respondent police.

3. The petitioners are arrayed as the accused 1, 3, 6 and 7. The case of

the petitioners is that on 14.04.2016 at about 12.00 a.m the petitioners and

others belonging to 'Abdul Kalam Latchiya India Party' conducted agitation

without proper prior permission to initiate necessary action against 30 bogus

Nursing and Para Medical Colleges in Dindigul Bus Stand near Silavathur

blocked road and also caused disturbance to the traffic. Based upon the

complaint given by the defacto complainant, namely, the Sub Inspector of

Police, attached to the respondent police, a case in Crime No.522 of 2016

for the offences under Sections 143, 145 and 188 IPC has been registered.

Based upon the First Information Report, investigation has been undertaken

and final report has been filed before the Judicial Magistrate No.2,

Dindigul, Dindigul District and the same has been taken on file in C.C.No.

519 of 2016.

https://www.mhc.tn.gov.in/judis/

Crl.O.P.(MD)No.8803 of 2021

4. Challenging the final report, this petition is filed mainly on the

ground that Section 188 IPC is non-cognizable offence and the police has

no right to file a final report.

5. The learned counsel for the petitioners has relied upon the

judgment reported in 2018(2) L.W (Crl.)606 (In Jeevanandhan and others

Vs. State rep. by Inspector of Police, Velayuthampalayam Police

Station, Karur District and another) wherein a elaborate discussion has

been made regarding the powers of police under Section 188 IPC. In view

of the settled preposition of law, cognizance taken by the Judicial

Magistrate No.2, Dindigul District under Section 188 IPC is without

jurisdiction.

6. So far as Section 143 IPC is concerned, for the purpose of taking

cognizance under Section 143 IPC, the ingredients under Section 141 IPC

must be brought on record. Section 141 IPC reads s follows:

141. Unlawful assembly —An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is

First To overawe by criminal force, or show of criminal force, 1the 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 https://www.mhc.tn.gov.in/judis/ Third To commit any mischief or criminal trespass, or

Crl.O.P.(MD)No.8803 of 2021

other offence; or Fourth By means of criminal force, or show of criminal force, to any person, to take or 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 an unlawful assembly.

From the reading of Section 141 IPC, the ingredients of offence are not

attracted to the present occurrence. It appears that the petitioners and others

conducted agitation to initiate necessary action against 30 bogus Nursing

and Para Medical College which spoiled the life of the students. There is no

material on record or material collected during the investigation to the effect

that the agitation turned to violence at the end or during the course of it.

7. In Section 145 the word 'unlawful assembly' is mentioned. The

petitioners and others conducted agitation with an intention to protect the

future life of the students. Hence, it should not be considered as unlawful

assembly. As observed in Jeevanandham's case, the respondent police

would have detained the petitioners under Section 41 CR.P.C and would

have released them after that. Without doing that, registration of case and

filing of final report may not be considered to be proper since the right of

agitation has been recognized and that too conducting the agitation without https://www.mhc.tn.gov.in/judis/

Crl.O.P.(MD)No.8803 of 2021

any violence cannot be considered to be per se illegal.

8. In view of the foregoing reasons, the charge sheet in C.C.No.519

of 2016 pending on the file of the learned Judicial Magistrate Court No.2,

Dindigul, Dindigul District, is liable to be quashed. Accordingly, the same

is quashed in entirety.

9. In fine, this Criminal Original Petition is allowed. Consequently,

connected miscellaneous petitions are closed.

06.07.2021

Index : Yes/No Internet: Yes/No CM 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 https://www.mhc.tn.gov.in/judis/

Crl.O.P.(MD)No.8803 of 2021

1.The Inspector of Police, Town North Police Station, Dindigul Town, Dindigul District.

2. The Judicial Magistrate Court No.2, Dindigul, Dindigul District.

3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis/

Crl.O.P.(MD)No.8803 of 2021

G.ILANGOVAN, J.,

CM

Crl.O.P.(MD)No.8803 of 2021 and Crl.M.P(MD)Nos.4526 and 4427 of 2021

06.07.2021

https://www.mhc.tn.gov.in/judis/