Madras High Court
K.Kovendhan @ Govindasamy vs The State on 7 July, 2021
CRL.O.P.No.11647 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.07.2021
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.O.P.No.11647 of 2021 and
Crl.M.P.No.6695 of 2021
K.Kovendhan @ Govindasamy ... Petitioner
Versus
1.The State,
Represented by Inspector of Police,
Dharmapuri B-1,
Police Station, Dharmapuri District.
(Crime No.2288 of 2020).
2.Rathina Kumar,
Son of Muthusamy,
Inspector of Police,
Dharmapuri Police Station. ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of the Code
of Criminal Procedure, to call for the records culminating in the charge
sheet filed in S.T.C.No.1611 of 2020, pending on the file of the Judicial
Magistrate No.I of Dharmapuri, quash the same.
For Petitioner : Mr.B.Mohan
For R1 : Mr.A.Damodaran,
Government Advocate (Crl. Side)
*****
Page No.1 of 10
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CRL.O.P.No.11647 of 2021
ORDER
The petitioner, who is facing trial in S.T.C.No.1611 of 2020, for
offence under Sections 143, 341 and 269 IPC before the learned Judicial
Magistrate No.I, Dharmapuri, has filed the Quash Petition.
2.The case of the prosecution is that on 24.10.2020, at about 03.10
p.m., the 1st respondent Police was on patrol duty to ensure whether the
prohibitory order under Section 144 of Cr.P.C., passed by the Central and
State Government is being properly followed. At that time, around 20
persons assembled in front of BSNL office, Dharmapuri and raised
slogans in support of their political leader Mr.Thirumavalavan,
Vidhuthalai Siruthai Katchi, against whom the Central Crime Branch
Police, Chennai registered a case for derogating the women in a book
written by him titled social justice. The 2nd respondent warned the
protesters that the prohibitory order under Section 144 of Cr.P.C., is in
force and also explained, the danger of spreading of COVID-19
pandemic very much is likely and asked them to disburse. Since they
refused to do so, they were arrested and later, let out on station bail in
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CRL.O.P.No.11647 of 2021
Crime No.2288 of 2020 for offence under Sections 143, 341 and 269
IPC. On completion of investigation, the 1st respondent Police filed the
charge sheet on 24.10.2020 before the trial Court, listing 4 witnesses as
LW1 to LW4 and annexing documents.
3.The learned counsel for the petitioner submitted that the
petitioner and the other accused are falsely implicated in this case for
political reason as a political vendetta. He further submitted that the
petitioner in a passerby person who was near the BSNL office, at that
time the protest was held following the protocol of safety. The members
of the political party viz., Vidhuthalai Siruthai Katchi were raising
slogans for foisting a false case against their leader. Further, they were
explaining the concept of social justice and in what context the women
has been viewed in social justice. The vested interest persons unable to
accept the social justice by making false allegation and casting
aspersions. The 1st respondent Police lodged a false complaint, against
which the present petition. Showing protest is the hallmark of
democracy and it is a fundamental right enshrined in the Constitution of
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CRL.O.P.No.11647 of 2021
India. Article 19(a) confers Freedom of Speech; Article 19(1)(b) confers
Right to Assemble; 19(1)(d) permits peaceful march. The peaceful
protest in non violent manner would no way attract the violation of any
directions and rules.
4.The learned counsel for the petitioner further submitted that the
prohibitory order in force has not been properly promulgated and there
was no declaration of any such prohibitory order. The 1 st respondent
Police is duty bound to promulgate if such order was in force, but no
steps have been taken as per Section 129 of Cr.P.C., which is mandatory.
Further, in this case all the witnesses LW1 to LW4 are Police personals
attached to the 1st respondent Police and no public witness was examined
as witness. There is no mention about the steps taken to secure public
witness. The alleged offence is said to have taken place on 24.01.2020.
On the same day in such alacrity, the charge sheet was made ready which
shows that how in a perfectionary manner, the entire investigation has
been carried out by the Police.
5.He further submitted that this Court as well as the Hon'ble Apex
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CRL.O.P.No.11647 of 2021
Court time and again held that the complainant himself cannot be an
investigating officer, which would vitiate the entire investigation. The
only exception is that it is to be seen whether any prejudice caused to the
accused by such investigation. In this case, on the same day of
registration of FIR, investigation completed and charge sheet made ready
and all the witnesses cited are Police personnels and no public witness
stated about any unlawful assembly, restriction of any public. The
petitioners and the other protesters were wearing face mask and
maintained social distance as per the Standard Operating Procedure
which can never be termed as unlawful assembly.
6.In support of his submissions, the learned counsel for the
petitioner relied upon the judgment of 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.
7.The learned Government Advocate (Crl. Side) appearing on
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CRL.O.P.No.11647 of 2021
behalf of the 1st respondent Police submitted that the petitioner belongs
to the political party viz., Viduthalai Siruthai Katchi, against whom, the
Central Crime Branch Police, Chennai had registered a case for making
derogation against the women in a book written by him titled social
justice, which would amount to disturbance and law and order. Getting
offended for taking lawful action against the leader of the said political
party, the petitioner and 19 other persons assembled in front of BSNL
office, Dharmapuri raised slogans against the State and Central
Government despite the prohibitory order was in force. The spread of
COVID-19 pandemic was in danger. Without following the protocols,
the petitioner and 19 others assembled and made protest and also
disturbed the traffic and public movement. He further submitted that the
2nd respondent was on patrol duty along with three other Police and
warned the petitioner as well as the other protesters to disburse citing the
prohibitory order is in force. During the COVID-19 pandemic period,
the act of the protesters would amount to spread of disease and
disturbance to the life of the general public. Despite warning, they failed
to disburse. Hence, they were arrested and later, let out on station bail.
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CRL.O.P.No.11647 of 2021
Thereafter, the witnesses were examined and charge sheet made ready
and filed on the same day before the trial Court. The filing of the charge
sheet on the same day of registration of the case would not make the
charge sheet bad in law. The trial Court had taken the cognizance of the
case, issued summons and thereafter, the petitioner approached this
Court. The points raised by the petitioner are to be decided only during
the trial and not in the Quash Petition.
8.This Court considered the rival submissions and perused the
materials available on record.
9.It is admitted that the offence had taken place on 24.10.2020 and
on the same day, the investigation completed and charge sheet filed
before the trial Court. LW4 is the complainant (2nd respondent), who had
registered the case in Crime No.2288 of 2020 against the petitioner and
19 others. The complainant himself had taken up the investigation,
examined three Police personals who form part of the patrol duty and no
independent witnesses was examined. Showing protest in a peaceful
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CRL.O.P.No.11647 of 2021
manner is the hallmark of democracy and it is a fundamental right.
10.From the statement of the witnesses produced, nowhere it is
seen that the prohibitory order in force has been promulgated. Only the
protesters were ordered to disburse. None of the witnesses have stated
that the protesters did not wear face mask and did not keep safe distance
and violated the directions issued by the both State and Central
Government. This Court as well as the Hon'ble Apex Court held that the
complainant and the investigating officer should not be one and the same
person, unless in exceptional cases, where there is no prejudice caused to
the accused. In this case, the prejudice against the accused is very much
there, since the witnesses examined are all Police personnels and no
independent witness was examined. Further, there is nothing to show
that there have been any promulgation of prohibitory order and the
protesters formed themselves as an unlawful assembly.
11.Out of 20 persons shown as accused, A2 and A4 are the only
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CRL.O.P.No.11647 of 2021
persons belonging to Viduthalai Siruthai Katchi and others are all public
persons, who were passerby on the way and they are nothing to do with
the protest held by the members of the said political party. Thus, the
continuation of the proceedings would amount to abuse of process of law
and hence, this Court is inclined to quash the proceedings against
petitioner and also the other accused who are all similarly placed as that
of the petitioner.
12.This Criminal Original Petition is allowed and the proceedings
in S.T.C.No.1611 of 2020 pending on the file of the Judicial Magistrate
No.I, Dharmapuri is hereby quashed against all the accused.
Consequently, the connected Miscellaneous Petition is closed.
07.07.2021
Index: Yes/No
Internet: Yes/No
vv2
M.NIRMAL KUMAR, J.
https://www.mhc.tn.gov.in/judis/
CRL.O.P.No.11647 of 2021
vv2
To
1.The Judicial Magistrate Court No.I,
Dharmapuri.
2.The Inspector of Police,
Dharmapuri B-1,
Police Station, Dharmapuri District.
3.The Public Prosecutor,
High Court, Madras.
CRL.O.P.No.11647 of 2021
07.07.2021
https://www.mhc.tn.gov.in/judis/
