Madras High Court

Kathiravan vs State Rep. By on 28 June, 2022

                                                                         CRL.O.P(MD)No.7679 of 2022


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 28.06.2022

                                                    CORAM:

                                   THE HON'BLE MR.JUSTICE N.SATHISH KUMAR

                                         CRL.O.P(MD)No.7679 of 2022 and
                                       CRL.M.P(MD).Nos.5240 & 5241 of 2022

                     1.Kathiravan
                     2.P.Vadivel
                     3.Muthuramalingam
                     4.Murugesan
                     5.Ganesan
                     6.M.Pasumpon
                     7.Elangovan                                       ... Petitioners

                                                    Versus

                     1.State rep. by,
                       The Inspector of Police,
                       D2, Sellur Police Station (Law & Order),
                       Madurai City.
                       In Crime No.1720 of 2015.

                     2.M.Rajendran                                     ... Respondents

                     PRAYER: Criminal Original Petition filed under Section 482 of the Code
                     of Criminal Procedure, to call for the records pertaining to the impugned
                     charge sheet in S.T.C.No.543 of 2016 pending on the file of the learned
                     Judicial Magistrate No.II, Madurai and quash the same as illegal.




                     Page No.1 of 10


https://www.mhc.tn.gov.in/judis
                                                                             CRL.O.P(MD)No.7679 of 2022


                                       For Petitioners   :     Mr.S.Sades Kumar
                                       For R1            :     Mr.A.Gokulakrishnan,
                                                               Additional Public Prosecutor

                                                          *****
                                                         ORDER

This Criminal Original Petition has been filed to quash the

proceedings in S.T.C.No.543 of 2016, on the file of the Judicial

Magistrate Court No.II, Madurai, for offence under Sections 143, 188

and 341 of IPC.

2.The allegation in the final report is that on 30.10.2015, the

petitioners without any prior permission unlawfully assembled and

conducted march towards Pasumpon Muthuramalinga Thevar Statue to

pay tribute in the function despite the direction of the Honourable

Supreme Court. Thereby, they had committed the offences under

Sections 143, 188 and 341 of IPC.

3.The learned counsel for the petitioners 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

https://www.mhc.tn.gov.in/judis CRL.O.P(MD)No.7679 of 2022

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 1 st

respondent Police submitted that the accused unlawfully assembled

without any prior permission and thereby, FIR has been registered and on

completion of investigation, charge sheet has been filed.

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 Hon'ble 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:-

'........

https://www.mhc.tn.gov.in/judis CRL.O.P(MD)No.7679 of 2022

(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 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

https://www.mhc.tn.gov.in/judis CRL.O.P(MD)No.7679 of 2022

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

(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

https://www.mhc.tn.gov.in/judis CRL.O.P(MD)No.7679 of 2022

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 of IPC, mere assembly of more than five persons

https://www.mhc.tn.gov.in/judis CRL.O.P(MD)No.7679 of 2022

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 143 of

IPC cannot be construed as unlawful assembly. Further, except general

allegations to attract the offence under Section 341 of IPC, there is no

material to show that there was wrongful restraint by the petitioners.

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 have 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:-

https://www.mhc.tn.gov.in/judis CRL.O.P(MD)No.7679 of 2022

'....

(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.'

10.Considering the above, this Court is of the view that mere

launching of final report by the prosecution itself is not sufficient to reach

https://www.mhc.tn.gov.in/judis CRL.O.P(MD)No.7679 of 2022

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 the

proceedings in S.T.C.No.543 of 2016, on the file of the Judicial

Magistrate Court No.II, Madurai is quashed against the petitioners.

Consequently, connected miscellaneous petitions are closed.

28.06.2022 Index: Yes/No Internet: Yes/No