Madras High Court
Gold Rafi @ Syed Rafi Basha vs State Rep. By Sub-Inspector Of ... on 22 October, 2021
CRL.O.P.No.16707 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.16707 of 2021 and
Crl.M.P.No.9123 of 2021
Gold Rafi @ Syed Rafi Basha ... Petitioner
Versus
State Rep. by Sub-Inspector of Police,
H-1 Washermanpet Police Station,
Chennai.
(In Crime No.189 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.189 of 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.189 of 2020, on the file of the respondent Police.
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CRL.O.P.No.16707 of 2021
2.The gist of the case is that on 05.03.2021 at Kannan Roundana,
Sajha Munuswamy Street and Vijayaraghavalu Street Junction,
Washermanpet the petitioner/A1 along with accused belong to Muslim
community held protest against Citizenship Amendment Act enacted by
the Government of India without any prior permission from the
concerned authority and also caused disturbance to the public. The
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 a case against the
petitioner/A1 and others in Crime No.189 of 2020 for offence under
Sections 143, 145, 147, 290 of IPC and Section 41(A) of the Tamil Nadu
City Police Act, 1888 and Section 3A(1)(c) of the Tamil Nadu Open
Place (Prevention of Disfigurement) Act, 1959 came to be registered.
3.The learned counsel for the petitioner submitted that the
petitioner is social activist and have been raising voice for the public
cause and public welfare, whenever injustice and inaction of the
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CRL.O.P.No.16707 of 2021
government machineries. In order to draw the attention of the Central
and State Governments, the petitioner along with others had protested
against Citizenship Amendment Act enacted by the parliament. 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. 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 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 for
quashing the investigation against the petitioner.
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CRL.O.P.No.16707 of 2021
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 05.03.2021, the
petitioner and other protesters assembled at Kannan Roundana, Sajha
Munuswamy Street and Vijayaraghavalu Street Junction, Washermanpet
participated in a Dharna against the Citizenship Amendment Act enacted
by the Government of India without any prior permission, held protest,
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
disperse citing the prohibitory order is in force. During the COVID-19
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CRL.O.P.No.16707 of 2021
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 Citizenship
Amendment Act enacted by the Government of India. The petitioner was
fighting for the religious minority rights.
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.16707 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 the Citizenship Amendment Act. 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 right to protest to be safeguarded and not to be termed as
criminal offence. In this case, 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
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CRL.O.P.No.16707 of 2021
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.189 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,
H-1 Washermanpet Police Station,
Chennai.
2.The Public Prosecutor,
High Court, Madras.
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CRL.O.P.No.16707 of 2021
M.NIRMAL KUMAR, J.
vv2
CRL.O.P.No.16707 of 2021
22.10.2021
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