Madras High Court

Appun @ Dayalamoorthy vs The Inspector Of Police on 5 July, 2022

                                                                                   Crl.O.P.No.15326 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 05.07.2022

                                                        CORAM

                            THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                              Crl.O.P.No.15326 of 2022

                Appun @ Dayalamoorthy                                               ... Petitioner

                                                           Vs.
                The Inspector of Police,
                V1 Police Station,
                Villivakkam,
                Chennai 600 049.                                                    ... Respondent

                Prayer: This Criminal Original Petition filed under Section 482 Cr.P.C. to call
                for entire records of Final Report in connection with the case in Crime No.949 of
                2017 on the file of the Respondent Police and quash the same.


                                      For Petitioner             : M/s.S.Deepika

                                      For Respondent             : Mr.A.Gokulakrishnan
                                                                  Additional Public Prosecutor

                                                        ORDER

This Criminal Original Petition has been filed to call for entire records of

Final Report in connection with the case in Crime No.949 of 2017 on the file of

the Respondent Police and quash the same.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.15326 of 2022

2. The allegation in the FIR indicates that on 27.07.2017, the petitioner

along with some other political leaders unlawfully assembled and made a protest

and raised slogans to cancel the NEET exam, without getting prior permission

from the concerned authority. While doing so, the accused also restrained the

public and squattered the public road. Thereby, he had committed the offences

under Sections 143 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.

4. The Learned Additional Public Prosecutor (Criminal Side) submitted

that the accused unlawfully assembled and caused disturbance to the public,

thereby, he has been prosecuted.

5. It is to be noted that while exercising the power under Section 482 of

Cr.P.C, the Court should be slow, at the same time, if the Court finds that from

https://www.mhc.tn.gov.in/judis Crl.O.P.No.15326 of 2022

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;

(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

https://www.mhc.tn.gov.in/judis Crl.O.P.No.15326 of 2022

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 -

(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

https://www.mhc.tn.gov.in/judis Crl.O.P.No.15326 of 2022

(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.

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 143, 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

https://www.mhc.tn.gov.in/judis Crl.O.P.No.15326 of 2022

democratic way, such a protest, in the absence of any ingredients of offence

under Section 143 cannot be construed as unlawful assembly.

9. Similarly to attract the offence under Section 188 of IPC, 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 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

https://www.mhc.tn.gov.in/judis Crl.O.P.No.15326 of 2022

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

FIR 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 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

proceedings against the petitioner in Crime No.949 of 2017 on the file of the

respondent police is quashed.

05.07.2022

Index :Yes/No Internet:Yes/No nti/ksa-2

https://www.mhc.tn.gov.in/judis Crl.O.P.No.15326 of 2022

N. SATHISH KUMAR,J.