Madras High Court

Mohamed Zubair vs The State Of Rep By on 10 June, 2022

                                                                               Crl.O.P.No.13184 of 2022 &
                                                                                  Crl.M.P.No.7089 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    Dated: 10.06.2022

                                                         Coram:

                          THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                                Crl.O.P.No.13184 of 2022
                                               and Crl.M.P.No.7089 of 2022

                Mohamed Zubair                                                  ...Petitioner

                                                          Vs.

                The State of Rep by
                The Sub Inspector of Police,
                Mayiladuthurai Police Station,
                Nagapattinam District.
                (Crime No.1312 of 2020)                                         ...Respondent

                PRAYER: Criminal Original Petition filed under Section 482 of Criminal
                Procedure Code, to call for the records pending in F.I.R in Crime No.1312 of 2020
                dated 08.09.2022 on the file of the respondent police and quash the same as
                against the Petitioner.


                                  For Petitioner   : Mr.H.Thameen Ansari

                                  For Respondent   : Mr.Leonard Arul Joseph Selvam
                                                     Government Advocate (Criminal Side)



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https://www.mhc.tn.gov.in/judis
                                                                                 Crl.O.P.No.13184 of 2022 &
                                                                                    Crl.M.P.No.7089 of 2022

                                                    ORDER

This petition has been filed to quash the proceedings pending in F.I.R in

Crime No.1312 of 2020 dated 08.09.2022 on the file of the respondent police and

quash the same as against the Petitioner.

2. The allegation in the F.I.R. is that, on 08.09.2020 at about 17.25 hours,

when the complainant and other police officers was patrolling near Municipality

Office at Mayiladuthurai, when Section 144 Cr.P.C. was in force, the petitioners

along with some other political leaders unlawfully assembled and made a protest

and also raised slogans against the release of the Muslim Prisoners and seven

Tamil Prisoners, in the birth anniversary of Ex.Chief Minister Mr.Perargnar Anna.

While doing so, the accused also restrained the public and squattered the public

road. Thereby, they 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

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the prosecution is nothing but abuse of process of law. Therefore, submitted that

the same may be quashed.

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, 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;

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(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 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:

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'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

(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

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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 141, 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 141

cannot be construed as unlawful assembly.

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

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

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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.'

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N.SATHISH KUMAR, J.

kas

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

F.I.R. 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

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 F.I.R. in Crime No.1312 of 2020 dated 08.09.2020 on the

file of the respondent police is quashed. Consequently, the connected