Madras High Court
V.Gunasekaran vs State Represented By on 11 January, 2022
Crl.O.P.No.21466 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.01.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.No.21466 of 2021 and
Crl.M.P.Nos.11595 of 2021 & 245 of 2022
1.V.Gunasekaran
2.P.Raghu
3.A.Velu
4.P.Babu
5.E.Velu
6.N.Balaraman
7.J.Babu ... Petitioners
Vs.
1.State Represented by,
The Inspector of Police,
K-4, Annanagar Police Station,
Chennai- 600040.
2.Gangan P,
The Sub-Inspector of Police,
K-4, Annanagar Police Station,
Chennai- 600040. ... Respondents
PRAYER: Criminal Original Petition is filed under Section 482 of the
Code of Criminal Procedure, to call for the records relating to the
Calender Case No.8280 of 2017, pending before the learned Vth
Metropolitan Magistrate, at Egmore, Chennain in Cr.No.348 of 2017, as
far as the petitioners are concerned and quash the same.
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Crl.O.P.No.21466 of 2021
For Petitioner : Mr.M.Krishnamoorthy
For R1 : Mr.E.Raj Thilak,
Additional Public Prosecutor
*****
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in C.C.No.8280 of 2017, on the file of the V Metropolitan
Magistrate Court, Egmore, Chennai.
2.The case of the prosecution in brevity is that on 13.03.2017, at
about 10.35 a.m., when the 2nd respondent/Sub Inspector of Police,
attached to the 1st respondent Police during his official routine patrol
duty along with other Police personnels, without obtaining any prior
permission, the petitioners unlawfully assembled before the Fair Price
Shop restrained the vehicles, shouting slogans and wrongfully restrained
the consumers from buying the ration from the shop. When the Police
intervened and insisted them to disperse, the petitioners failed to do so.
Hence, an FIR in Crime No.348 of 2017, for offence under Sections 143,
341 and 188 IPC was registered against them, on completion of
investigation charge sheet came to be filed before the learned V
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Crl.O.P.No.21466 of 2021
Metropolitan Magistrate, Egmore, Chennai and the same was taken on
file as C.C.No.8280 of 2021, listing 5 witnesses as LW1 to LW5.
3.The learned counsel for the petitioners submitted that in this
case, LW1 to LW5 are all public servants and no private person was
examined and cited as witness during investigation. The case of the
prosecution is that the petitioners assembled before the Fair Price Shop
which is a public place and made protest for not providing ration articles.
It is highly improbable that no public witness was present in the place of
occurrence and no reason has been given for non examination of public
witnesses. In this case, the FIR in Crime No.348 of 2017 was registered
for offence under Section 143, 341 and 188 IPC. As per Section 188
IPC, only the public servant is authorized to lodge a complaint and
Section 195 Cr.P.C is clear embargo as to how a complaint to be
registered and investigated by the Police for offence under Section 188
IPC. In this case, there is no complaint from the public servant. Hence,
the registration of the FIR its void ab initio and continuing the
investigation for other offences is also not permitted.
4.The learned counsel for the petitioners further submitted that this
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Crl.O.P.No.21466 of 2021
Court in catena of judgments have clearly held that the police personnel
are not empowered to register an FIR under Section 188 IPC. There is
nothing to show that on the date of occurrence, there was any prohibitory
order in force and whether that order was communicated in the
prescribed manner is also not known. The learned counsel further
submitted that this Court in the cases of “Madhan Mohan Versus The
State and another in Crl.O.P.Nos.23129 & 23127 of 2019” on the
similar grounds, quashed the proceedings against the accused. Further,
in the case of “Jeevanandham and others Vs. State Rep. by Inspector of
Police and another reported in (2018) 2 LW Crl. 606”, had given an
authoritative pronouncement regarding the cases to be registered and
investigated under Section 188 IPC and also issued certain guidelines,
which is violated in this case.
5.The learned counsel for the petitioners further submitted that the
petitioners raised slogans and held demonstration against the
Government for the ineffectiveness in distribution of ration articles,
which cannot be construed as unlawful act. Right to Dissent is the
Hallmark of Democracy, the petitioners only expressed their displeasure
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Crl.O.P.No.21466 of 2021
which is their fundamental right. Hence, he prayed for quashing of the
proceedings against the petitioners.
6.The learned Additional Public Prosecutor appearing for the
respondents submitted that in this case, a complaint was lodged by the 2nd
respondent/the Sub Inspector of Police attached to the 1st respondent
Police. When he was on patrol duty along with other Police personnels
near Fair Price Shop, found the petitioners under the leadership of A1,
had assembled and raised slogans against the Government and also
caused disturbance to the public. Timely intervention of the respondents,
further law and problem were averted. The petitioners without getting
permission from the authorities concerned have formed themselves into
an unlawful assembly restrained the others and caused public
disturbance. On completion of investigation, charge sheet has been filed
in this case.
7.Considering the rival submissions and on perusal of the materials
this Court finds that the petitioners have only raised their objection with
regard to the shortage and non supply of ration articles to the general
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Crl.O.P.No.21466 of 2021
public. The purpose for having a ration shop is to make available the
essential items for the needy persons, at affordable price. The pulses and
the palm oil are the daily cooking needs of the general public and for the
shortage and non supply, they have shown their displeasure. Raising
slogans against the Government itself would not amount to any
commission of offence, which is a fundamental right under Constitution
of India.
8.From the statement of the witnesses, it is seen that LW1 to LW5
present in the scene of occurrence and according to them, the petitioners
raised slogans against the Government and with regard to shortage of
non supply of ration articles, they did not do anything more. Admittedly
in this case, the occurrence had taken place in the public place and view,
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 th same is barred under Section 195 Cr.P.C. There
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Crl.O.P.No.21466 of 2021
is no material to show that there was any promulgation of any prohibitory
order which was communicated to the public and there was any
disobedience by the petitioners. Further, in consequence to the protest,
the prosecution failed to show whether any trouble injuries occurred.
Thus, the respondent Police did not follow the guidelines issued by this
Court in Jeevanandham (Cited Supra). In several cases, this Court
quashes the proceedings against the accused/protesters on the similar
ground.
9.In the result, the proceedings in C.C.No.8280 of 2017, on the file
of the V Metropolitan Magistrate Court, Egmore, Chennai is hereby
quashed against the petitioners. This Criminal Original Petition is
allowed accordingly. Consequently, the connected Criminal
Miscellaneous Petitions are closed.
11.01.2022
Index: Yes/No
Internet: Yes/No
vv2
M.NIRMAL KUMAR, J.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.21466 of 2021
vv2
To
1.The V Metropolitan Magistrate Court,
Egmore, Chennai.
2.The Inspector of Police,
K-4, Annanagar Police Station,
Chennai – 600 040.
3.The Public Prosecutor,
High Court, Madras.
Crl.O.P.No.21466 of 2021
11.01.2021
https://www.mhc.tn.gov.in/judis
