Madras High Court

A.K.Siva @ Sivakumar vs State Represented By on 6 July, 2022

                                                                            Crl.O.P.No.14683 of 2022

                                       IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                             DATED : 06.07.2022

                                                    CORAM

                            THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                          Crl.O.P.No.14683 of 2022
                                     and Crl.M.P.Nos.8121 & 8122 of 2022

                1. A.K.Siva @ Sivakumar
                2. V.Shankar @ Kumar
                3. V.Sundar @ Ravi
                4. B.Karthikeyan @ Perumal
                5. M.Pandian
                6. S.Saravanan
                7. V.Parthiban
                8. M.Ravindran @ Raveendran
                9. R.Gnanavel
                10. K.Elumalayan @ Elumalai
                11. K.Soundar Rajan
                12. D.Arasukumar
                13. A.Rajangam @ Sathish                                    ... Petitioners

                                                     Vs.
                State Represented by,
                The Inspector of Police,
                B2, Vishnu Kanchi Police Station.
                (Crime No.610 of 2014)                                     ... Respondent

                1/12

https://www.mhc.tn.gov.in/judis
                                                                                  Crl.O.P.No.14683 of 2022




                Prayer: Criminal Original Petition filed under Section 482 Cr.P.C., pleased to

                call for the records pertaining to the Charge Sheet in P.R.C.No.44 of 2015

                pending on the file of the Judicial Magistrate No.I, Kanchipuram and quash the

                same.

                                      For Petitioners     :   Mr.A.Suresh Sakthi Murugan
                                      For Respondent      :   Mr.A.Gokulakrishnan
                                                              Additional Public Prosecutor


                                                        ORDER

This Criminal Original Petition has been filed to call for the records

pertaining to the Charge Sheet filed against the petitioners and other accused in

P.R.C.No.44 of 2015 for the offence under Sections 147, 341, 188, 332 IPC r/w

7(1)(a) CLA Act and 3(1) of Tamil Nadu Property (Prevention of Damage and

Loss) Act, 1992 pending on the file of the Judicial Magistrate No.I,

Kanchipuram for the offence under Sections and quash the same.

2. The allegation in the final report is that on 15.08.2014, the petitioners

along with other persons without any prior permission unlawfully assembled

https://www.mhc.tn.gov.in/judis Crl.O.P.No.14683 of 2022

and protested in a public place to revoke the dismissal order of the employees of

GSH Company, who had started a Union in that Company. Thereby, they had

committed the offences under Sections 147, 341, 188, 332 IPC r/w 7(1)(a) CLA

Act and 3(1) of Tamil Nadu Property (Prevention of Damage and Loss) Act,

1992.

3. The learned counsel for the petitioners submitted that except the

general allegation that they made certain allegation, no other materials are

available. 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 appearing for the respondent

police would submit that the accused unlawfully assembled without any prior

permission and thereby, First Information Report has been registered.

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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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(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

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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

(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

https://www.mhc.tn.gov.in/judis Crl.O.P.No.14683 of 2022

(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 147, 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 147 cannot be construed as unlawful assembly.

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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 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-

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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. Except the general allegation, there is no other specific allegation and

further there is no materials available to attract Section 332 of IPC and the

offence in causing damage to the public property. With regard to the Criminal

Amendment Act, there is no specific allegation made out. The Criminal

Amendment Act is only amended the certain provisions in the existing penal

law.

11. Even as per the FIR, it is not the case of the defacto complainant that

the petitioner has wrongfully restrained the defacto complainant and hence,

offence under section 341 of IPC is not attracted. Similarly, there is no

allegation that the petitioner obstructed the defacto complainant or any officers

in discharging their functions.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.14683 of 2022