Madras High Court
S.D.Sahul Hameed vs State Rep By on 27 June, 2022
Crl.OP.No.14679 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.06.2022
CORAM
THE HONOURABLE MR. JUSTICE N.SATHISH KUMAR
Crl.O.P.No.14679 of 2022 and
Crl.M.P.No.8115 of 2022
S.D.Sahul Hameed ... Petitioner
Vs.
State rep by
The Inspector of Polcie,
Seven Wells Police Station,
Flower Bazaar, Chennai.
(Crime No.72 of 2020) ... Respondent
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 petitioners in Crime
No.72 of 2020 pending on the file of the respondent.
For Petitioner : Mr.M.Mohamed Riyaz
For Respondent : Mr.A.Gokulakrishnan
Additional Public Prosecutor
1/10
https://www.mhc.tn.gov.in/judis
Crl.OP.No.14679 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 2020 pending on
the file of the respondent Police.
2. The allegation in the FIR indicates that on 25.03.2022, while Section 144
was in force, the petitioner and others gathered near a mosque at Portugal Church
Street without getting prior permission from the concerned authority. Thereby, he
had committed the offences under Sections 341, 294(b), 353 and 188 of I.P.C, r/w
Section 3 of Epidemic Diseases Act and 51(b) of Disaster Management Act,2005.
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.OP.No.14679 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
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Crl.OP.No.14679 of 2022
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 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.’
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Crl.OP.No.14679 of 2022
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 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
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Crl.OP.No.14679 of 2022
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.'
7. Even as per the FIR, it is not the case of the defacto complainant/ Head
Constable 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. Therefore, the offence under section 51[b] of the
Disaster Management Act, 2005 will not be attracted. The allegations are mainly
attracted against unknown persons. Similarly, there are no details about any
criminal force made by the petitioner to deter the defacto complainant from
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Crl.OP.No.14679 of 2022
discharging his duty. Hence, offence under section 353 of IPC is also not
attracted.
8. Further, there is no material to show that the petitioner and other persons
are armed with deadly weapon to attract other offences and there is no whisper
about the other accused. The identity of the petitioner has not been established.
Similarly, 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 exercise.
9. 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
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Crl.OP.No.14679 of 2022
support for proving the case and continuing the prosecution on shaky or without
any materials is clear abuse of process of law.
10. Accordingly, this Criminal Original Petition is allowed and proceedings
against the petitioner in Crime No.72 of 2020 on the file of the respondent police is
quashed. Consequently, connected miscellaneous petition is closed.
27.06.2022
Internet : Yes / No
Index : Yes / No
Speaking / Non Speaking order
nr/vrc
To
1.The Inspector of Polcie,
Seven Wells Police Station,
Flower Bazaar, Chennai.
2.The Public Prosecutor
High Court, Madras.
https://www.mhc.tn.gov.in/judis
Crl.OP.No.14679 of 2022
N.SATHISH KUMAR,J.
nr/vrc
Crl.O.P.No.14679 of 2022 and
Crl.M.P.No.8115 of 2022
https://www.mhc.tn.gov.in/judis
Crl.OP.No.14679 of 2022
27.06.2022
https://www.mhc.tn.gov.in/judis
