Madras High Court
Lathifullah @ Mohamed ... vs State Rep. By Sub Inspector Of ... on 3 September, 2021
CRL.O.P.No.15355 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.09.2021
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.O.P.No.15355 of 2021 and
Crl.M.P.No.8392 of 2021
Lathifullah @ Mohamed Lathifullah (M/41),
s/o Mohamed Yusuf. .... Petitioner
Vs.
State rep. by Sub Inspector of Police,
H-1, Washermanpet Police Station,
Chennai.
(In crime No.33 of 2021) ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of the Code
of Criminal Procedure, to call for the records in Crime No.33 of 2021 on
the file of the respondent police and quash the same.
For Petitioner : M/s. A.Raja Mohamed
For Respondent : Mr.A.Damodaran,
Government Counsel (Criminal Side)
*****
ORDER
This Criminal Original Petition has been filed to quash
proceedings in Crime No.33 of 2021 on the file of the respondent police.
https://www.mhc.tn.gov.in/judis/
CRL.O.P.No.15355 of 2021
2. The case of the prosecution is that on 05.02.2021, while the
second respondent was on routine patrol, the petitioner and other 43
persons assembled at the Junction of T.H. Road and Cementry Road,
Washermenpet and participated in a Dharna against one Kalyanaraman,
State Secretary of BJP Party. Further, it is stated that the defacto
complainant asked the petitioner and others to disperse from the said
occurrence place. The defacto complainant 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 failed to obey the order,
the respondent arrested the petitioner and others and registered a case in
Crime No.33 of 2021 for the offences punishable under Sections 143,
188, 269 of IPC, 3 of Epidemic Diseases Act 1987, and Sec.41, 71(A),
41(6) of TNCP Act and Section 4-B read with 4A(1a) of Tamil Nadu
Open Place Difigurement Act 1959.
3. The learned counsel appearing for the petitioner submitted that
the petitioner is a social activist and has been raising voice for the public
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CRL.O.P.No.15355 of 2021
cause and public welfare, whenever injustice and inaction of the
government machineries. In order to draw the attention of the Central and
State Governments, the petitioner along with several members had
protested against one Kalyanaraman, who verbally abused the prophet
Muhammad. The learned counsel further submitted that the Hon'ble
Supreme Court of India has 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. Further he
submitted that 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 petitioners and the other protesters were
wearing face mask and maintained social distance as per the Standard
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CRL.O.P.No.15355 of 2021
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 proceeding.
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 Government Advocate (Criminal side) submits that
in this case on 05.02.2021 the petitioner and other 43 persons assembled
at the Junction of T.H. Road and Cementry Road, Washermenpet and
participated in a Dharna against one Kalyanaraman, State Secretary of
BJP Party, without any prior permission, held protest, caused nuisance to
the public and disobeyed the prohibitory orders passed by the police
officers. The spread of COVID-19 pandemic was in danger. Without
following the protocols, the petitioner and others assembled and made
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CRL.O.P.No.15355 of 2021
protest and also disturbed the traffic and public movement. He further
submitted that the defacto complainant was on patrol duty along with
other Police and warned the petitioner as well as the other protesters to
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 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 Kalyanaraman, according to the
petitioner, he made defamation statement against Prophet Muhammad.
Raising slogans against the political person itself would not amount to
commission of offence, by dissenting and showing Protest is the
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CRL.O.P.No.15355 of 2021
Hallmark of Democracy, which is a fundamental right under Constitution
of India.
7 .The petitioner and others raised slogans against a person, belong
to a political party. Admittedly in these cases, the occurrences 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. 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. 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.
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CRL.O.P.No.15355 of 2021
8.In the result, this Criminal Original Petition is allowed and the
proceedings in Crime No.33 of 2021 on the file of the respondent police
a is hereby quashed as against the petitioner and others similarly placed.
Consequently, the connected Criminal Miscellaneous Petition is closed.
03.09.2021
Index: Yes/No
mrp
To
Sub Inspector of Police,
H-1, Washermanpet Police Station,
Chennai
https://www.mhc.tn.gov.in/judis/
CRL.O.P.No.15355 of 2021
M.NIRMAL KUMAR, J.
mrp
CRL.O.P.No.15355 of 2021
03.09.2021
https://www.mhc.tn.gov.in/judis/
