Madras High Court
A.S.Ismail vs State Rep. By Its on 1 October, 2021
CRL.O.P.No.17795 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.10.2021
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.O.P.Nos.14854 & 17795 of 2021
and
Crl.M.P.Nos.8074 & 8075 and 9773 & 9774 of 2021
A.S.Ismail ... Petitioner in O.P.14854/2021
1. Kunangkudi Anifa @
Anifa Ravuthar Naina Mugahammed
2. Tamim Ansari @ Thamimum Ansari
3. Basheer Ahamed @ Konica Baseer
4. Muhamed Kan Pakavi @ Mohamed Khan
5. S.M.Abdul Rahim Patel
6. S.M.Bakkar
7. Muhamed Munir @ Muhammed Muneer Sait
8. S.M.Sikkandar
9. Hamid Bakri ... Petitioners in O.P.17795/2021
Page No.1 of 10
https://www.mhc.tn.gov.in/judis/
CRL.O.P.No.17795 of 2021
Versus
State rep. by its
The Sub-Inspector of Police,
F-1, Chintadripet Police Station,
Chennai. ... Respondent in both O.Ps.
PRAYER: Criminal Original Petition filed under Section 482 of the Code
of Criminal Procedure, to call for the records in C.C.No.16 of 2021
pending before the Additional Special Court No.II for trial of cases
related to member of parliament and members of legislative assembly of
Tamil Nadu, Chennai and quash the same as illegal.
For Petitioner : Mr. I. Abdul Basith
in both O.Ps.
For respondent : Mr.Hasan Mohammed Jinnah
in both O.Ps State Public Prosecutor,
Assisted by
Mr. A.Damodharan,
Additional Public Prosecutor
*****
https://www.mhc.tn.gov.in/judis/
CRL.O.P.No.17795 of 2021
COMMON ORDER
The petitioners, who are facing trial in C.C.No.16 of 2021, for
offence under Sections 143, 285, 341, 353 and 188 IPC before the
learned Additional Special Court No.II for trial of cases related to MPs &
MLAs, Chennai, have filed the Quash Petition.
2.The case of the prosecution is that on 18.09.2012, at about 3.30
p.m., near Annasalai Dams Road junction, the members, belonging to
Tamilnadu Muslim Organisation, had assembled and raised protest for a
short film produced in America in the name of "Innocence of Muslims".
According to the petitioners, it caused ill-will and dis-repute to the
Muslim Community. Due to which, the petitioners have been falsely
implicated in this case as though they have violated the prohibitory
orders and formed themselves in an unlawful assembly, disobeyed the
public servant and obstructed the public.
https://www.mhc.tn.gov.in/judis/
CRL.O.P.No.17795 of 2021
3. The learned counsel for the petitioners would submit that in this
case, First Information Report came to be registered on 18.09.2012 and
within few days, charge sheet has been filed on 06.10.2012. No proper
investigation has been conducted. Further, there is no materials to show
that prohibitory order was in force at that point of time and the same
was published in the manner known to law. Further, the learned counsel
placed reliance in the order passed by this Court in W.P.No.10560 of
2015, dated 19.06.2015 in the case of A.Santhos Yadav /vs/ Bar Council
of Tamil Nadu, wherein this Court has clearly held that for registering a
case under Section 188 IPC, complaint from the public authority is
necessary. In this case, no public servant has lodged a complaint and the
complaint itself is registered at the instance of the Sub-Inspector of
Police.
4. He would further submit that freedom of speech and expression
is guaranteed under the Constitution and nowhere mentioned, that
particular offence is committed. The offence cannot be made out by mere
stating facts. Specific overtact of the accused to be stated, supported
with the statements and documents. Thus, no prima facie case is made
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CRL.O.P.No.17795 of 2021
out against the petitioners for the aforesaid offences. The learned XIV
Metropolitan Magistrate, Egmore, Chennai insisting the petitioner to face
the case. Subsequently, the case was transferred to the Additional Special
Court for Trial of Cases related to M.P's and M.L.A's , Chennai and the
same was taken on file and assigned as C.C.No.16 of 2021. Since, there
is no offence made out in the charge sheet, having no other option, filed
this quash petition. Hence, the criminal proceedings initiated against the
petitioner in C.C.No.16 of 2021 pending on the file of the learned the
Additional Special Court for Trial of Cases related to M.P's and M.L.A's ,
Chennai, is liable to be quashed.
5.He further submitted that this Court as well as the Hon'ble Apex
Court time and again held that the complainant himself cannot be an
investigating officer, which would vitiate the entire investigation. In
support of his submissions, the learned counsel for the petitioners 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.
https://www.mhc.tn.gov.in/judis/
CRL.O.P.No.17795 of 2021
7.The learned State Public Prosecutor appearing on behalf of the
respondent submitted that the petitioners and others assembled near
Annasalai Dams road Junction and raised protest for a short film
produced in America and also disturbed the traffic and public movement.
He further submitted that the respondent was on patrol duty along with
other Police and warned the petitioners as well as the other protesters to
disperse citing the prohibitory order is in force. Despite warning, the
petitioners and others refused to disperse, on the other hand, they raised
slogans and caused disturbance to the public. The points raised by the
petitioners are to be decided only during the trial and not in the Quash
Petition and therefore, he strongly opposed the petition and prayed for
dismissal of the same.
8.This Court considered the rival submissions and perused the
materials available on record.
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CRL.O.P.No.17795 of 2021
6.Considering the rival submissions and on perusal of the
materials, it is admitted fact that the petitioners and others raised protest
which is their fundamental right, no public lodged complaint and no
public got affected, due to the protest conducted by the petitioner and
others. Hence, this Court finds that the petitioner and others have only
raised slogans and shown protest against film produced in America in the
name of "Innocence of Muslims". According to the petitioners, it caused
ill-will and dis-repute to the Muslim community. Raising slogans would
not amount to commission of offence, by dissenting and showing Protest
is the Hallmark of Democracy, which is a fundamental right under
Constitution of India.
7. Admittedly in these cases, the occurrences took place in a
public place, in public view, surprisingly no public gave complaint,
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.
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CRL.O.P.No.17795 of 2021
There is no material to show that there was any promulgation of
prohibitory orders which was communicated to the public and there was
any disobedience by the petitioner. Further, in consequence to the
protest, the prosecution failed to show whether any trouble occurred.
The respondent Police failed to follow the guidelines issued by this Court
in Jeevanandham (Cited Supra). In several cases, this Court quashed
the proceedings against the accused/protesters on similar ground.
8.In the result, both the Criminal Original Petitions are allowed
and the final report in C.C.No.16 of 2021 pending on the file of the
Additional Special Court No.II for M.P's and M.L.A's , Chennai, is
hereby quashed as against the petitioners and others, who are similarly
placed. Consequently, the connected Criminal Miscellaneous Petitions
are closed.
01.10.2021
Index: Yes/No
mrp
https://www.mhc.tn.gov.in/judis/
CRL.O.P.No.17795 of 2021
To
1. The Additional Special Court No.II for M.P's and M.L.A's ,
Chennai,
2.The Sub-Inspector of Police,
F-1, Chintadripet Police Station,
Chennai.
3.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis/
CRL.O.P.No.17795 of 2021
M.NIRMAL KUMAR, J.
mrp
CRL.O.P.Nos.14854 &
17795 of 2021
01.10.2021
https://www.mhc.tn.gov.in/judis/
