Madras High Court
Yasar Gani @ Muhamed Yasar vs State Rep. By Sub-Inspector Of ... on 22 October, 2021
CRL.O.P.No.16960 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.10.2021
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.O.P.No.16960 of 2021 and
Crl.M.P.No.9265 of 2021
Yasar Gani @ Muhamed Yasar ... Petitioner
Versus
State Rep. by Sub-Inspector of Police,
B-1 North Beach Police Station,
Chennai.
(In Crime No.1733 of 2020). ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of the Code
of Criminal Procedure, to call for the records in Crime No.1733 of 2020,
dated 29.08.2020 on the file of the respondent Police and quash the same.
For Petitioner : Mr.A.Rajamohamed
For Respondent : Mr.A.Damodaran,
Additional Public Prosecutor
*****
ORDER
This Criminal Original Petition has been filed to quash the FIR in
Crime No.1733 of 2020, on the file of the respondent Police.
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CRL.O.P.No.16960 of 2021
2.The gist of the case is that on 29.08.2020 at Narayanayappa
Street, North Beach Road, Chennai, the petitioner/A9 along with accused
held protest against the new education scheme enacted by the
Government without any prior permission from the concerned authority
and also caused disturbance to the public. The respondent Police 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 a case against the petitioner/A9
and others in Crime No.1733 of 2020 for offence under Sections 143,
188, 269, 290 IPC and Section 41 of the Tamil Nadu City Police Act,
1888 and Section 4A(1b) of the Tamil Nadu Open Places (Prevention of
Disfigurement) Act, 1959 came to be registered.
3.The learned counsel for the petitioner submitted that the
petitioner is social activist and has been raising voice for the public cause
and public welfare, whenever injustice and inaction of the government
machineries. In order to draw the attention of the Government, the
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CRL.O.P.No.16960 of 2021
petitioner along with several members had protested against the new
education scheme enacted by the government. The learned counsel
further submitted that the Hon'ble Supreme Court held that the right to
freely assemble and also right to freely express once view or
constitutionally protected rights under Part III and their enjoyment can be
only in proportional manner through a fair and non-arbitrary procedure
provided in Article 19 of Constitution of India. He further submitted that
it is the duty of the Government to protect the rights of freedom of
speech and assemble that is so essential to a democracy. According to
Section 195(1)(a) of Cr.P.C., no Court can take cognizance of an offence
under Section 188 of IPC, unless the public servant has written order
from the authority. The petitioner or any other members had never
involved in any unlawful assembly and there is no evidence that the
petitioner or others restrained anybody. The petitioner 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. Since, there is no offence made out in the charge sheet, having
no other option except to file this quash petition. Therefore, he sought
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CRL.O.P.No.16960 of 2021
for quashing the investigation against the petitioner.
4.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.”
5.The learned Additional Public Prosecutor appearing for the
respondent Police submitted that in this case on 29.08.2020, the
petitioner and other protesters assembled at Narayanayappa Street, North
Beach Road, Chennai and held protest against the new education scheme
enacted by the Government, without any prior permission and caused
nuisance to the public and disobeyed the prohibitory orders passed by the
police officers. At that time, the spread of COVID-19 pandemic was in
danger. Without following the protocols, the petitioner and others
assembled and made protest and also disturbed the traffic and public
movement. He further submitted that the respondent Police along with
other Police warned the petitioner as well as the other protesters to
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CRL.O.P.No.16960 of 2021
disperse 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, the petitioner and others refused to disperse, on the other hand,
they raised slogans and caused disturbance to the public.
6.Considering the rival submissions and on perusal of the
materials, it is admitted fact that the petitioner and others raised protest
which is their fundamental right. In this case, no public lodged a
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 the new
education scheme enacted by the Government.
7.It is seen that the petitioner herein had followed the rights
provided by the Constitution of India and held the protest under the guise
of Constitution. A mere reading of the allegations in the FIR, the
allegations are general in nature and no specific allegations are made
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CRL.O.P.No.16960 of 2021
against the petitioner to attract the said provisions. Raising slogans and
showing protest itself would not amount to commission of offence.
Showing Protest is the Hallmark of Democracy, which is a fundamental
right guaranteed under the Constitution of India.
8.The petitioner and others raised slogans against the Government
for enacting new education scheme. Admittedly in this case, the
occurrence took place in a public place, in public view, surprisingly no
public or independent witness examined by the prosecution, which
causes serious doubt on the veracity of the complaint. 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. 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
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CRL.O.P.No.16960 of 2021
respondent Police failed to follow the guidelines issued by this Court in
Jeevanandham (Cited Supra). In several this type of cases, this Court
quashed the investigation against the accused/protesters on similar
ground.
9.In the result, this Criminal Original Petition is allowed and the
FIR in Crime No.1733 of 2020 on the file of the respondent police is
hereby quashed as against the petitioner. Consequently, the connected
Criminal Miscellaneous Petition is closed.
22.10.2021
Index: Yes/No
Internet: Yes/No
vv2
To
1.The Sub-Inspector of Police,
B-1 North Beach Police Station,
Chennai.
2.The Public Prosecutor,
High Court, Madras.
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CRL.O.P.No.16960 of 2021
M.NIRMAL KUMAR, J.
vv2
CRL.O.P.No.16960 of 2021
22.10.2021
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