Madras High Court
Mohamed Jubair vs The State Rep.By on 9 June, 2022
Crl.O.P.No.13093 of 2022&
Crl.M.P.No.7024 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 09.06.2022
Coram:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Crl.O.P.No.13093 of 2022 and
Crl.M.P.No.7024 of 2022
Mohamed Jubair ...Petitioner/A3
Vs
The State rep.by
The Sub-Inspector of Police,
Mayiladuthurai Police Station,
Nagapattinam District.
(Crime No.1378 of 2020) ...Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Criminal
Procedure Code, to call for the records in FIR in Crime No.1378 of 2020 dated
01.10.2020 on the file of the respondent police and quash the same.
For Petitioner : Mr.H.Thameen Ansari
For Respondent : Mr.Leonard Arul Joseph Selvam
Government Advocate(Crl.side)
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ORDER
This Criminal Original Petition has been filed to call for the records in FIR
in Crime No.1378 of 2020 dated 01.10.2020 on the file of the respondent police
and quash the same.
2. The allegation in the FIR indicates that on 01.10.2020, the petitioner
along with some other political leaders unlawfully assembled and made a protest
and raised slogans against the return to the Babri Masjid Mosque to the Muslims
and to punish the accused, 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, 341 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.
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4. The Learned Government Advocate (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 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
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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 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-
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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
(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
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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 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
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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.'
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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. 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.1378 of 2020 on the file of the respondent
police is quashed. Consequently, connected miscellaneous petition is closed.
09.06.2022
Index : Yes
Internet : Yes
Speaking Order
nr/ham
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To
1.The Sub-Inspector of Police,
Mayiladuthurai Police Station,
Nagapattinam District.
2.The Public Prosecutor
High Court, Madras.
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Crl.M.P.No.7024 of 2022
N.SATHISH KUMAR, J.
nr/ham
Crl.O.P.No.13093 of 2022 and
Crl.M.P.No.7024 of 2022
09.06.2022
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