Madras High Court

P.Jeevanantham vs The Inspector Of Polcie on 6 July, 2022

                                                                                       Crl.OP.No.257 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.257 of 2022 and
                                                      Crl.M.P.No.75 of 2022


               P.Jeevanantham                                                           ... Petitioner
                                                              Vs.

               1. The Inspector of Polcie,
                  Nagavalli Police Station,
                  Salem District.
                  (Crime No.72 of 2017)

               2. Sathiyapriya                                                          ... Respondents



               PRAYER: This Criminal Original Petition filed under Section 482 of Cr.P.C., to

               to call for the records and quash the proceedings as against the petitioner in Crime

               No.72 of 2017 pending on the file of the first respondent.

                                   For Petitioner              :    Mr.V.Elangovan

                                   For Respondents                 : Mr.A.Gokulakrishnan
                                                                    Additional Public Prosecutor - R1



               1/8


https://www.mhc.tn.gov.in/judis
                                                                                  Crl.OP.No.257 of 2022

                                                       ORDER

This Criminal Original petition has been filed to call for the records and

quash the proceedings as against the petitioner in Crime No.72 of 2017 pending

on the file of the first respondent Police for the offences under Sections 147, 143,

188 and 283 of I.P.C.

2. The allegation in the FIR indicates that on 07.04.2022, the petitioner

who was the Ex. Chairman of Nagavalli Panchyat Union along with 100 persons

belonging to various political parties and local villagers, unlawfully assembled at

Kattu Valavu, Nagavalli Village raised slogans against the newly opening

TASMAC liquor shop and thereby, the present First Information Report has been

registered.

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.

https://www.mhc.tn.gov.in/judis Crl.OP.No.257 of 2022

4. The Learned Additional Public Prosecutor 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 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;

https://www.mhc.tn.gov.in/judis Crl.OP.No.257 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. 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

no 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

https://www.mhc.tn.gov.in/judis Crl.OP.No.257 of 2022

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 2018-2-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.'

https://www.mhc.tn.gov.in/judis Crl.OP.No.257 of 2022

7. Even as per the FIR, it is not the case of the defacto complainant/ Head

Constable that the petitioner along with other persons has unlawfully assembled

and used force or violence and hence, offences under sections 143 and 147 of IPC

is not attracted. Similarly, there is no allegation that the petitioner caused danger

or obstruction to any person in any public way or public line of navigation.

Therefore, the offence under section 283 will not be attracted.

7. Further, the police have no powers to initiate prosecution under section

188 of IPC. The offence under section 188 of IPC can be taken cognizance only

on the complaint in writing by a public servant and there is a clear bar under

section 195 of Cr.P.C. for the Court to take cognizance of the offence. Under

these circumstances, continuing the proceedings against the petitioner is a futile