Madras High Court
Kumaresan vs The State Represented By Its on 27 October, 2021
CRL OP (MD) No. 16482 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.10.2021
CORAM:
THE HONOURABLE MR. JUSTICE G.ILANGOVAN
Crl.O.P (MD) No.16482 of 2021
and Crl.M.P(MD) No.8887 of 2021
Kumaresan ... Petitioner
-Vs-
The State represented by its,
The Inspector of Police,
Paramakudi Town Police Station,
Ramanathapuram District.
(Crime No.526 of 2020) ... Respondent/Complainant
PRAYER: The Criminal Original Petition is filed under Section 482 of the Code
of Criminal Procedure, to call for the records of the FIR in Crime No.526 of 2020
on the file of the 1st respondent and quash the same.
For Petitioner : Mr.M.S.Jeyakarthik
For Respondent : Mr.RMS.Sethuraman
Additional Public Prosecutor
ORDER
This petition is filed seeking quashment of Crime No.526 of 2020 on the
file of the respondent.
https://www.mhc.tn.gov.in/judis
CRL OP (MD) No. 16482 of 2021
2.Heard the learned counsel for the petitioner and the learned Additional
Public Prosecutor for the respondent.
3.The case of the petitioner is that on 11.09.2020 at about 11.50 a.m., the
petitioner along with 44 persons gathered and participated in the Martyr
Immanuel Sekaran Memorial day function without following the guidelines
issued by the Government of Tamil Nadu with regard to the implementation of
144 proceedings due to COVID-19 pandemic. Hence, a case in Crime No.526 of
2020 for the offences punishable under Sections 143, 177, 188 and 269 of IPC
has been registered. The present petition is filed to quash the First Information
Report in Crime No.526 of 2020.
4.This petition is filed mainly on the ground that Section 188 IPC is non-
cognizable offence and the police has no right to register the case and investigate.
Section 269 IPC is concerned, there is no intention on the part of the petitioner to
spread the disease to another and simply he was roaming in the road.
5.In the judgment reported in 2018(2) L.W (Crl.) 606 In Jeevanandhan
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CRL OP (MD) No. 16482 of 2021
and others Vs. State rep. by Inspector of Police, Velayuthampalayam Police
Station, Karur District and another), it has been held that the police has no right
to file a case under Section 188 IPC and to investigate the same without getting
proper permission from the concerned jurisdictional Magistrate. Here, there is no
material to show that before registering the case, permission of the concerned
jurisdictional Magistrate has been obtained. In such circumstances, the
respondent has no right to register the case and to investigate the matter. A
detailed guideline has been issued by this Court in the judgment cited supra. On
this aspect, Section 188 IPC will not stand against the petitioner.
6.The offence under Section 269 IPC is concerned, as per the contents of
the First Information Report, it is seen that the petitioner was simply roaming in
the road. Apart from Sections 188 and 269 IPC, the offences 143 is also alleged
against this petitioner. It is the allegation of the prosecution is that along with
others this petitioner by defending the 144 Cr.P.C. proceedings gathered in the
place. So according to the prosecution, it is an offence under Section 143 of IPC.
7.Section 141 of IPC is reads as follows:
“141. Unlawful assembly —
https://www.mhc.tn.gov.in/judis
CRL OP (MD) No. 16482 of 2021
An assembly of five or more persons is designated an
"unlawful assembly", if the common object of the
persons composing that assembly is—
First — To overawe by criminal force, or show of
criminal force, the Central or any State Government or
Parliament or the Legislature of any State, or any
public servant in the exercise of the lawful power of
such public servant; or
Second — To resist the execution of any law, or of any
legal process; or
Third — To commit any mischief or criminal trespass,
or other offence; or
Fourth — By means of criminal force, or show of
criminal force, to any person, to take or obtain
possession of any property, or to deprive any person of
the enjoyment of a right of way, or of the use of water
or other incorporeal right of which he is in possession
or enjoyment, or to enforce any right or supposed right;
or
Fifth — By means of criminal force, or show of criminal
force, to compel any person to do what he is not legally
bound to do, or to omit to do what he is legally entitled
to do.
Explanation — An assembly which was not unlawful
when it assembled, may subsequently become an
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CRL OP (MD) No. 16482 of 2021
unlawful assembly.”
8.When we see the facts of the case in the light of the above said definition,
it is seen that the ingredients of the offences under Sections 141 IPC are not
attracted against this petitioner and others with regard the allegations levelled
against them that they were gathered in the place of occurrence not for
committing any offence which constitute an unlawful assembly. They have simply
gathered in that place for participating in Martyr Immanuel Sekaran Memorial
day function. For the purpose of conducting the function, the petitioner and
others ought to have obtained proper and prior permission from the authorities.
But they have not done so. But that will not amount to unlawful assembly as
defined under Section 141 I.P.C. It appears that they exercised their democratic
right in celebrating their leader's memorial day function. So this will not amount
to an offence.
9.It is also seen that even though the Covid -19 protocol was in force
during the relevant time, no material has been collected to show that the
petitioner and others were infected by Covid – 19 viral disease. So their intention
was not to spread the disease, but to celebrate their leader's memorial day
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CRL OP (MD) No. 16482 of 2021
function.
10.Taking all these aspects into account, I am of the considered view that
the First Information Report in Crime No.526 of 2020 on the file of the
respondent is liable to be quashed and accordingly, the same is quashed.
11.In the result, this petition is allowed. Consequently, connected
miscellaneous petition is closed.
27.10.2021
Internet : Yes / No
Index : Yes / No
TM
Note:In view of the present lock down owing to COVID-19 pandemic, a
web copy of the order may be utilized for official purposes, but, ensuring
that the copy of the order that is presented is the correct copy, shall be
the responsibility of the advocate / litigant concerned.
To
1.The Inspector of Police,
Paramakudi Town Police Station,
Ramanathapuram District.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
CRL OP (MD) No. 16482 of 2021
G.ILANGOVAN, J.
TM
CRL OP (MD) No.16482 of 2021
27.10.2021
https://www.mhc.tn.gov.in/judis
