Madras High Court
S.Prince Ennarasu Periyar vs The State Rep.By on 9 July, 2021
CRL.O.P.No.357 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.07.2021
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.O.P.No.357 of 2021
and
Crl.MP.Nos.174 & 175 of 2021
S.Prince Ennarasu Periyar ... Petitioner/A-7
Versus
1.The State rep.by
The Inspector of Police,
Sembium Police Station,
Chennai. ..1st respondent/Complainant
(Crime No.1277 of 2019)
2.Jaganathan
The Inspector of Police,
Sembium Police Station,
Chennai. ...2nd respondent/Defacto Complainant
Page No.1 of 10
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CRL.O.P.No.357 of 2021
PRAYER: Criminal Original Petition filed under Section 482 of the Code
of Criminal Procedure, to call for the records relating to the Charge sheet
in C.C.No.8299 of 2017, on the file of the learned V Metropolitan
Magistrate, Chennai in Crime No.1277 of 2017, on the file of the 1st
respondent and quash the same so far as the petitioner is concern.
For Petitioner : Mr.S.Kumara Devan
For R 1 : Mr.A.Damodaran,
Government Advocate (Crl. Side)
ORDER
The petitioner/A7, who is facing trial before the learned V
Metropolitan Magistrate, Egmore, Chennai in C.C.N0.8299 of 2017, for
offence under Sections 143, 353, 188 & 75 CP Act r/w 7(1)(a) CLA Act
@ 143, 145, 147 & 353 IPC, has filed the above Quash Petition.
2.On information, the 2nd respondent/defacto complainant
the Inspector of Police, Sembium Police Station, Chennai registered a
case in Crime No.1277of 2017 on 09.09.2017 against the petitioner. On
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CRL.O.P.No.357 of 2021
completion of investigation, charge sheet filed against them, listing five
witnesses as LW1 to LW5 and documents.
3.The gist of the case is that on 09.09.2017, at about 17.00
hrs, the 2nd respondent/LW1 along with the Police party was on duty, at
that time, near Murasolimaran Park, the petitioner and others without any
prior permission from the authorities concerned had unlawfully
assembled and obstructed the free movement of traffic and general
public, raised slogans and conducted a dharna. When the 2nd respondent
intervened and insisted them to disburse, the petitioner/protesters failed
to do so. Hence, a complaint was lodged and on completion of
investigation charge sheet came to be filed before the learned V
Metropolitan Magistrate, Egmore, Chennai and the same was taken on
file as C.C.No.8299 of 2017.
4.The contention of the petitioner is that in this case, LW1 to
LW5 are all public personnels and no private person examined and cited
as witness in this case. The case of the prosecution is that the petitioners
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CRL.O.P.No.357 of 2021
are said to have indulged in a protest against the NEET examination. It
is highly improbable that no public witness was present in the place of
occurrence and no reason given for non examination of public witnesses.
In this case, the FIR in Crime No.1277 of 2017 was registered for offence
under Section 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 continuing the investigation for other offences is also
not permitted
.
5.The learned counsel for the petitioner submitted that this
Court in catena of judgments have clearly held that the police personnel
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
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CRL.O.P.No.357 of 2021
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
6.The learned counsel for the petitioner further submitted
that the petitioner raised slogans and held demonstration against the
Government regarding NEET exam, which cannot be construed as
unlawful act. Right to Dissent is the Hallmark of Democracy, the
petitioner only expressed his displeasure which is his fundamental right.
Hence, he prayed for quashing of the proceedings against the petitioner.
7.The learned Government Advocate (Crl.side) appearing
for the respondents submitted that in this case, a complaint was lodged
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CRL.O.P.No.357 of 2021
by the 2nd respondent/the Inspector of Police, Sembium Police Station,
Chennai/LW1. When he was on patrol duty along with LW2 to LW4 near
Murasolimaran Park, found the petitioner had assembled and raised
slogans against the Government and also caused disturbance to the
public. Timely intervention of the respondents, further law and problem
were averted. The petitioners without getting permission from the
authorities concerned have formed themselves into an unlawful assembly
restrained the others and caused public disturbance. On completion of
investigation, charge sheet has been filed in this case.
8.Considering the rival submissions and on perusal of the
materials this Court finds that the petitioners have only raised their
objection with regard to general public. Raising slogans against the
Government itself would not amount to any commission of offence,
which is a fundamental right under Constitution of India.
9.From the statement of the witnesses, it is seen that LW1 to
LW5 present in the scene of occurrence and according to them, the
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CRL.O.P.No.357 of 2021
petitioner raised slogans against the Government and he was indulged in
a protest against the NEET examination. Admittedly in this case, the
occurrence taken place in a public place and in public view, no public or
independent witness examined by the prosecution, which creates 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 th 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 to the public and there was any disobedience by the
petitioners. 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.
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CRL.O.P.No.357 of 2021
10.In the result, the proceedings in C.C.No.8299 of 2017, on
the file of the V Metropolitan Magistrate Court, Egmore, Chennai is
hereby quashed against the petitioner/A7 as also against all other accused
who are similarly placed. This Criminal Original Petition is allowed
accordingly. Consequently, connected Criminal Miscellaneous Petitions
are closed.
09.07.2021
kp
Index: Yes/No
Internet: Yes/No
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CRL.O.P.No.357 of 2021
To
1. The Inspector of Police,
Sembium Police Station,
Chennai.
2. V Metropolitan Magistrate,
Chief Metropolitan Magistrate Court,
Chennai.
3.The Public Prosecutor,
High Court, Madras.
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CRL.O.P.No.357 of 2021
M.NIRMAL KUMAR, J.
kp
CRL.O.P.No.357 of 2021
09.07.2021
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