Madras High Court
S.Vinodhkumar vs The State on 11 August, 2022
Crl.O.P.No.18432 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 11.08.2022
Coram:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Crl.O.P.No.18432 of 2022
and Crl.M.P.Nos.12155 & 12159 of 2022
S.Vinodhkumar .. Petitioner
Versus
The State
The Inspector of Police,
C2, Race Course Police Station
Coimbatore – 641 018 .. Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Criminal Procedure
Code, to call for the records connected with the case in S.T.C.No.3155 of 2017 by
the learned Judicial Magistrate – III, Coimbatore and quash the same insofar as the
petitioner is concerned.
For Petitioner : Mr.C.Rajaguru
For Respondent : Mr.Leonard Arul Joseph Selvam
Government Advocate (Crl.Side)
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Crl.O.P.No.18432 of 2022
ORDER
This petition has been filed to quash the final report in S.T.C.No.3155 of
2017 pending on the learned Judicial Magistrate – III, Coimbatore registered as
against the petitioner and other accused for the offences under sections 143, 341 and
188 of IPC.
2. The allegation in the final report is that on 02.06.2017 at about 16.00, the
petitioner along with other persons without any prior permission unlawfully
assembled and protested in a public place condemning the ruling of the union
government for banning cow slaughter. Thereby, they had committed the offences
under Sections 143, 341 and 188 of I.P.C.
3. The learned counsel for the petitioner submitted that the prosecution has
been launched with false allegations and even when the entire prosecution case
taken as a face value, the same would not constitute any offence and continuing the
prosecution is nothing but abuse of process of law. Therefore, submitted that the
same may be quashed.
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Crl.O.P.No.18432 of 2022
4. The Learned Government Advocate (Criminal Side) submitted that the
accused unlawfully assembled without any prior permission and thereby, First
Information has been registered.
5. It is to be noted that while exercising the power under Section 482, the
Court should be slow, at the same time, if the Court finds that from the entire
materials collected by the prosecution taken as a whole, would not constitute any
offence, in such situation, directing the parties to undergo ordeal of trial will be a
futile exercise and it will infringe the right of the persons and in this regard, the
Apex Court in State of Haryana and others Vs. Bhajan Lal and Others reported
in 1992 Supp (1) Supreme Court Cases 335, has been held as follows :
'........
(a) where the allegations made in the First Information
Report or the complaint, even if they are taken at their face
value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report
and other materials, if any, accompanying the F.I.R. do not
disclose a cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code except under
an order of a Magistrate within the purview of Section 155(2)
of the Code;
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Crl.O.P.No.18432 of 2022
(c) where the uncontroverted allegations made in the FIR or
'complaint and the evidence collected in support of the same do
not disclose the commission of any offence and make out a case
against the accused;
(d) where the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer without
an order of a Magistrate as contemplated under Section 155(2)
of the Code;
(e) where the allegations made in the FIR or complaint are
so absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously instituted
with an ulterior motive for wreaking vengeance on the accused
and with a view to spite him due to private and personal
grudge.’
6. It is also relevant to note the definition of Unlawful Assembly:
'Unlawful Assembly-
An assembly of five or more persons is designated an
“unlawful assembly”, if the common object of the persons
composing that assembly is -
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Crl.O.P.No.18432 of 2022
(i) 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
(ii) to resist the execution of any law, or of any legal
process; or
(iii) to commit any mischief or criminal trespass, or
other offence; or
(iv) 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
(v) 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.'
7. Only when the assembly fit into any of the above circumstances, it could
be construed as unlawful. The materials collected by the prosecution do not show
that the accused had shown any criminal force to commit any mischief, crime or any
offence or by way of criminal force or tried to take possession of the property or
right to use of incorporeal right which is in possession of enjoyment of others or
rights.
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Crl.O.P.No.18432 of 2022
8. Similarly, it is not the case of the prosecution that the accused has
assembled to commit any offence. When the prosecution prima facie failed to
establish that the assembly of five or more persons with a common object to commit
any offence or any of the circumstances shown under Section 141, mere assembly of
more than five persons cannot be construed that there is an unlawful assembly.
Therefore, when the people gathered to show the protest in a democratic way, such
a protest, in the absence of any ingredients of offence under Section 141 cannot be
construed as unlawful assembly.
9. Similarly to attract the offence under Section 188 there must be
disobedience to order duly promulgated by the public servant. In this case there is
evidence available to show that the accused has assembled to resist or execution of
any law and there is no whisper whatsoever available in the First Information Report
or in the other materials to show that there were promulgation or there were any
prohibitory order existed at the relevant point of time. In this regard it is relevant to
refer to a judgment of a Division Bench of this Court in Moogambigai
S.Thirugnanasammantham and others Vs. State rep. by the Inspector of
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Crl.O.P.No.18432 of 2022
Police, Karur reported in 2021 0 Supreme [Mad] 555, wherein it has been held as
follows:
'....
(9) When the allegations in the FIR and the materials
collected by the prosecution does not disclose the commission
of any offence and make out a case against the accused and
the prosecution itself is instituted with an ulterior motive for
wreaking vengeance, this Court can exercise power under
Section 482 Cr.P.C. with regard to quashing of the charge
sheet for the offence under Section 188 IPC, this Court in
Jeevanandam and others Vs. State rep. by the Inspector of
Police reported in 2018-2-L.W.(Crl) 606 has relied a
judgment in V.Gowthaman and others Vs. State rep. by its
Inspector of Police, St.Thomas Mount Police Station,
Chennai reported in '2018 (4) CTC 252' and held that the
cognizance taken by the Magistrate under Section 188 IPC is
not permissible and therefore, the prosecution of the accused
under Section 188 IPC stands quashed.'
10. Considering the above, this Court is of the view that mere launching of
final report by the prosecution itself is not sufficient to reach to the conclusion that
offences are made out and the materials collected by the prosecution do not support
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Crl.O.P.No.18432 of 2022
for proving the case and continuing the prosecution on shaky or without any
materials is clear abuse of process of law.
11. Accordingly, this Criminal Original Petition is allowed and the final report
in S.T.C.No.3155 of 2017 as against the petitioner on the file of the learned Judicial
Magistrate – III, Coimbatore is quashed. Consequently, connected miscellaneous
petitions are closed. No costs.
11.08.2022
dhk
Index : Yes
Internet : Yes
Speaking Order
To
1. The Judicial Magistrate – III
Coimbatore
2.The Inspector of Police,
C2, Race Course Police Station
Coimbatore – 641 018
3.The Public Prosecutor,
High Court of Madras.
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Crl.O.P.No.18432 of 2022
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Crl.O.P.No.18432 of 2022
N.SATHISH KUMAR, J.
dhk
Crl.O.P.No.18432 of 2022
11.08.2022
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