Madras High Court
Lois Sophia @ Layis Shobia vs The Inspector Of Police on 16 August, 2023
Crl.O.P.(MD).No.563 of 2019
THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.08.2023
CORAM:
THE HONOURABLE MR. JUSTICE P.DHANABAL
Crl.O.P.(MD).No.563 of 2019
and
Crl.M.P(MD) Nos.271 and 272 of 2019
Lois Sophia @ Layis Shobia ... Petitioner
Vs.
1. The Inspector of Police
Pudukottai Police Station,
Thoothukudi District.
2. Subramanian
Director
Thoothukudi Airport,
Thoothukudi
(R2 suomotu impleaded as per the order of
this Court in the place of existing respondent
dated 14.03.2022)
3. K.Annamalai
(R3 impleaded as per the order of the Court
dated 09.02.2023 in Crl.M.P(MD) No.9524
of 2023) ..Respondents
PRAYER: This Criminal Original Petition has been filed under Section
482 of Criminal Procedure Code, to call for the records pertaining to the
case in S.T.C. No.324 of 2018 on the file of the learned Judicial
Magistrate No.III, Thoothukudi and quash the same.
For Petitioner : Mr.R.Diwakaran
For R-1 :Mr.R.M.Anbunithi
Additional Public Prosecutor
For R-2 :Mr.C.Godwin
For R-3 :Mr.K.R.Laxman
https://www.mhc.tn.gov.in/judis
1/17
Crl.O.P.(MD).No.563 of 2019
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in S.T.C. No.324 of 2018 on the file of the learned Judicial
Magistrate No.III, Thoothukudi.
2. According to the petitioner based on the complaint given by
the second respondent the first respondent registered a case in Crime
No.285 of 2018 for the offences under Sections 290 of IPC and 75(1)(c)
of Tamil Nadu City Police Act,1888. Thereafter the case has been
investigated and charge sheet was filed for the offences under Sections
290 of IPC and 75(1)(c) of Tamil Nadu City Police Act,1888. According
to the prosecution case the petitioner and the second respondent
travelled by Indigo flight between Chennai to Thoothukudi on
03.09.2018. While the passengers were alighting from the flight, the
petitioner herein shouted at the second respondent stating that “ Paasisa
Ba.Ja.Ka. Aatchi Ozhiga”. The second respondent preferred complaint to
the Airport Manager who in turn preferred complaint with the first
respondent. The first respondent registered First Information Report in
Crime No.285 of 2018. The alleged act of the petitioner could not be
construed as offending since there was no complaint against her by the
Captain or the other Crew members or any other passenger. The
allegations levelled in the complaint preferred by the second respondent
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.563 of 2019
stated that she has doubts over the back ground of the petitioner and
does not even have a whisper about any nuisance caused to the second
respondent or to any other person. The allegations do not constitute any
offence under Section 290 of IPC or Section 75(1)(c) of the Tamil Nadu
City Police Act, even if taken on its face value and hence the charge sheet
based on such a complaint ought to be quashed. The petitioner has
chosen to vent her anger against the act of the state of killing 13 persons
by firing at them at Thoothukudi by raising the slogan alleged to have
caused nuisance to the defacto complainant. The same could not be
treated to have caused injury, danger, obstruction or annoyance to the
complainant herein. Even the alleged overt act taken on its face value
and accepted in their entirety do not prima facie constitute any offence
or make out a case against the petitioner. The First Information Report
has been registered for the offences under Sections 290 of IPC and
Section 75(1)(c) of Tamil Nadu City Police Act which are non cognizable
and no permission obtained from the learned Magistrate and procedure
laid down under Section 155 of Cr.P.C have not been followed. Therefore
the charge sheet in S.T.C. No.324 of 2018 is liable to be quashed.
3. No counter was filed by the respondents.
4. In this case intervenor filed intervening petition in
Crl.M.P(MD) No.9524 of 2022 stating that entire criminal complaint rests
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.563 of 2019
upon the complaint given by the then State President of Tamil Nadu BJP,
wherein, if and only the present State President of Tamil Nadu, BJP, the
petitioner herein to defend the grounds raised in the present quash
petition, the ends of justice could be met and since the slogans is as
against the ruling party and he being the member of the party has filed
this petition but on perusal of the records it is seen that permission was
already granted by this Court and he was impleaded as third respondent
in this case. The original complainant was added as second respondent in
this case and thereafter the name of the second respondent was deleted
and the Airport authority name was included as second respondent.
5. The learned counsel appearing for the petitioner would
contend that according to the complaint, First Information Report has
been registered as against the petitioner for the offences under Sections
290 of IPC and Section 75(1)(c) of Tamil Nadu City Police Act and both
are non cognizable offences and the procedure under Section 155 of
Cr.P.C has not been followed and no permission was obtained from the
learned Magistrate and the complaint was not referred to the learned
Magistrate, hence there are procedural violations. Even according to the
allegations of the complaint no offence is made out as against this
petitioner and this petitioner raising slogans is not offence and in this
case the defacto complainant is the Airport authority and the third
respondent has no locus standi to object this petition. The learned
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.563 of 2019
counsel appearing for the petitioner has also produced the judgments of
the Hon'ble Apex Court in the case of Keshav Lal Thakur .vs. State of
Bihar and the order passed by this Court in the case of Arumugam .vs.
The Inspector of Police, Kalapet Police Station, Puducherry
District in Crl.O.P(MD) No.6609 of 2021.
6. The learned counsel appearing for the intervenor would
contend that the police failed to register case under the Suppression of
Unlawful Acts against Safety of Civil Aviation Act, 1982, but , they
registered case under Sections 290 of IPC and Section 75(1)(c) of Tamil
Nadu City Police Act and they failed to invoke the provision of Section 3
of the Suppression of Unlawful Acts against Safety of Civil Aviation Act,
1982. Therefore the petition for quashing the charge sheet is liable to be
dismissed. Even according to the First Information Report offences
under Sections 290 of IPC and Section 75(1)(c) of Tamil Nadu City Police
Act and also section 505(1)(b) of IPC are also registered. Since section
505(1)(b) of IPC is cognizable offence there is no irregularity in
conducting investigation and filing of final report for the offence under
Section 290 of IPC and section 75(1)(c) of the Tamil Nadu City Police Act
as per section 155(4) of Cr.P.C.
7. The learned Additional Public Prosecutor appearing for the
first respondent would contend that as far as section 75(1)(c) of Tamil
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.563 of 2019
Nadu City Police Act is concerned Thoothkudi District is not notified,
however based on the complaint given by the second respondent, First
Information Report has been registered and the case has been
investigated and after investigation final report has been filed.
8. Already this Court has directed the Director of Civil Aviation
to assist the Court in an effective manner and the learned counsel
appearing for the Director of Civil Aviation also heard by this Court.
9. Heard both sides and perused the materials available on
record.
10. On perusal of the record it is observed that the complaint
has been lodged by the Airport authority, based on the complaint given
by the second respondent i.e. former State President of BJP, Tamil Nadu.
Then the first respondent registered case in Crime No.285 of 2018 for
the offences under Sections 290 of IPC and 75(1)(c) of Tamil Nadu City
Police Act,1888. On perusal of the First Information Report, there is an
inclusion of Section 505(1)(b) of IPC in the First Information Report by
hand written. Other offences are in the printed form but the offence
under Section 505(1)(b) of IPC has been inserted by handwritten.
However the learned counsel for the petitioner brought to the knowledge
of the Court that at the time of remand itself the learned Magistrate
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.563 of 2019
refused to remand the petitioner for the offence under Section 505(1)(b)
of IPC and remanded the petitioner for the offences under Sections 290
of IPC and 75(1)(c) of Tamil Nadu City Police Act,1888 and the same
was also admitted by the counsel for the respondent. On seeing the
complaint it seen that the petitioner shouted as “ Paasisa Ba.Ja.Ka. Aatchi
Ozhiga”, i.e., Fascist B.J.P. down down. These words alone do not
constitute any offence.
11. The learned counsel appearing for the intervenor brought to
the knowledge of this Court by referring Section 3 of the Suppression of
Unlawful Acts against Safety of Civil Aviation Act, 1982. It will not be
applicable to the present facts of the case and mere uttering of words
will not attract the provisions of the Act, which reads as follows:
3. Offence of committing violence on board an aircraft in
flight, etc.—
(1) Whoever unlawfully and intentionally—
(a) commits an act of violence against a person on board an
aircraft in flight which is likely to endanger the safety of such aircraft; or
(b) destroys an aircraft in service or causes damage to such
aircraft in such a manner as to render it incapable of flight or which is
likely to endanger its safety in flight; or
(c) places or causes to be placed on an aircraft in service, by
any means whatsoever, a device or substance which is likely to destroy
that aircraft, or to cause damage to it which renders it incapable of
flight, or to cause damage to it which is likely to endanger its safety in
flight; or
(d) communicates such information which he knows to be
false so as to endanger the safety of an aircraft in flight, shall be
punished with imprisonment for life and shall also be liable to fine.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.563 of 2019
(2) Whoever attempts to commit, or abets the commission of, any offence
under sub-section (1) shall also be deemed to be have committed such
offence and shall be punished with the punishment provided for such
offence.
12. In this Case no any violence committed by the petitioner and
mere uttering of the said word is not likely to endanger the safety of any
aircraft and the complaint was not given by the aircraft alleging to
attract the said provision. Even according to the complaint, the sections
mentioned in the First Information Report are non cognizable offence
and the procedures laid down under Section 155 of Cr.P.C have not been
followed in this case. Once the magistrate rejected the remand for the
offence under Section 505(1)(b) of I.P.C, it is the duty of the police to
follow the procedure under Section 155 of Cr.P.C., which reads as
follows:
“155. Information as to non-cognizable cases and
investigation of such cases:
(1) When information is given to an officer in charge of
a police station of the commission within the limits of such station
of a non-cognizable offence, he shall enter or cause to be entered
the substance of the information in a book to be kept by such
officer in such form as the State Government may prescribe in this
behalf, and refer, the informant to the Magistrate
(2) No police officer shall investigate a non-cognizable
case without the order of a Magistrate having power to try such
case or commit the case for trial
(3) Any police officer receiving such order may exercise
the same powers in respect of the investigation (except the power
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.563 of 2019
to arrest without warrant) as an officer in charge of a police station
may exercise in a cognizable case
(4) Where a case relates to two or more offences of
which at least one is cognizable, the case shall be deemed to be a
cognizable case, notwithstanding that the other offences are
noncognizable”
13. On careful reading of the aforesaid provision it is clear that
the informant has to refer to the Magistrate and no police can investigate
a non cognizable offence without the order of a Magistrate having
power to try such case or commit the case for trial under Section 155(2)
of the Act. In this case the police have not followed the above procedures.
14. The learned counsel appearing for the petitioner relied on
the following judgments:
i) Keshav Lal Thakur .vs. State of Bihar,wherein it is held as
follows:
“We need not go into the question whether in the facts of the
instant case the above view of the High Court is proper or not for the
impugned proceeding has got to be quashed as neither the police was
entitled to investigate into the offence in question nor the Chief Judicial
Magistrate to take cognizance upon the report submitted on completion
of such investigation. On the own showing of the police, the offence
underSection 31of the Act is non cognizable and therefore the police
could not have registered a case for such an offence under Section
154(2) Dr. P.C. of course, the police is entitled to investigate into a non-
cognizable offence pursuant to an order of a competent Magistrate
under Section 155(2) Dr. P.C. but, admittedly, no such order was passed
in the instant case. That necessarily means, that neither the police could
investigate into the offence in question nor submit a report on which the
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.563 of 2019
question of taking cognizance could have arisen. While on this point, it
may be mentioned that in view of the proviso to Section 2(d) Dr. P.C.,
which defines 'complaint', the police is entitled to submit, after
investigation, a report a relating to a non-cognizable offence in which
case such a report is to be treated as a 'complaint' of the police officer
concerned, but that explanation will not be available to the prosecution
here as that related to a case where the police initiates investigation
into a cognizable offence - unlike the present one - but ultimately finds
that only a non-cognizable offence has been made out.
ii) Arumugam .vs. The Inspector of Police, Kalapet Police
Station, Puducherry District in Crl.O.P(MD) No.6609 of 2021,
wherein it is held as follows:
“5. Section 155 (1) of Cr.P.C makes it very clear that where
information is received by an officer~in~charge of a Police station
regarding the commission of a non~cognizable offence, he/she shall refer
the informant to the learned Magistrate. There is a difference between
referring the informant to the learned Magistrate and seeking permission
from the learned Magistrate directly by the Investigating Officer.
The Legislative mandate has to be followed scrupulously. This Court in
similar circumstances, had held in A. Balarkrishnan vs. The Inspector of
Police dated 28.09.2020 that officer~in~charge of Police Station has to
refer the informant to the learned Magistrate and not just the
information. The relevant portion is extracted herein for better
understanding:
?9. In the above judgment the Section 155(i) and (ii)
of Cr.P.C., clearly mandates that
the Officer~in~Charge of the police station has to refer the
informant and not the information alone to the Magistrate
concerned. In the case on hand, neither the information
regarding the commission of non~cognizable offence recorded
in the register as mandated by the above said provision nor
informant was referred to the concerned Magistrate. It is clear
violation of the provision of Section 155 (i) and (ii) of Cr.P.C.
Therefore, the FIR impugned in this petition cannot be sustained
and it is liable to be quashed.?
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.563 of 2019
6. The reading of Section 155(1) of Cr.P.C., would make it
very clear that the Court mandates the Police Officer to refer the
informant to the learned Magistrate. The reason is not far to seek.
The learned Magistrate may, on such reference, either take the complaint
on file or pass an order directing the Police to investigate the case.
The Police officer cannot seek permission or an order from the learned
Magistrate without referring the informant to the learned Magistrate.
Therefore, the procedure adopted by the Police in seeking
permission/order from the learned Magistrate to investigate
non~cognizable offences without referring the informant and the orders
passed by the learned Magistrate on such requests are against the
provisions of the code. The procedure can be summarised as follows:
(a) If the Police officer~in~charge of Police Station receives a
complaint relating to non~cognizable offences, he/she shall refer the
informant to the Magistrate. It is needless to say that the learned
Magistrate can either take the complaint on file or direct an
investigation by the Police.
(b) Section 155(2) Cr.P.C., provides that an order has to be
passed by the learned Magistrate directing the Police to investigate and
not mere permission. Hence, the learned Magistrate has to pass an order
supported by reasons for allowing the Police to investigate.
Cryptic orders such as “permitted” would not satisfy the provisions of the
code.
(c) The learned Magistrate shall not pass an order on an
application by the Police for investigating non~cognizable offences
without the informant being referred to him/her.
15. On careful reading of the said judgment it is clear that any
investigation done in respect of non cognizable offence without following
the procedure under Section 155 of Cr.P.C would render the final report
illegal.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.563 of 2019
16. In the case on hand also the First Information Report has
been registered under Section 290 of IPC and Section 75(1)(c) of Tamil
Nadu City Police Act and these offences are non cognizable offences.
However on perusal of the printed copy of the First Information Report it
appears that 505(1)(b) of IPC was hand written. On perusal of the
complaint no averments to attract the provision under Section 505(1)(b)
of IPC. Further the learned Magistrate has also refused to remand the
accused for the offence under Section 505(1)(b) of IPC. Therefore it
appears that the offence under Section 505(1)(b) of IPC was included
later with handwritten without any averments in the complaint to attract
the offence under Section 505(1)(b) of IPC for the reasons best known to
them.
17. At this juncture, the learned counsel appearing to the third
respondent argued that since the offence under Section 505(1)(b) is
cognizable offence the police can very well investigate the case as per
Section 155(4) of Cr.P.C. As per Section 155(4) of Cr.P.C., Where a
case relates to two or more offences of which at least one is cognizable,
the case shall be deemed to be a cognizable case, notwithstanding that
the other offences are non-cognizable. However the complaint does not
disclose any cognizable offence and mere inclusion of cognizable offence
for the reasons best known to them will not affect the procedures under
Section 155 of Cr.P.C. Once the procedures under Sections 155(1)and
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.563 of 2019
(2) of Cr.P.C are mandatory as per the above said judgments submitted
by the learned counsel for the petitioner, mere inclusion of cognizable
offence without any materials in the complaint, it does not mean that the
procedures mandated under Section 155(1)and (2) of Cr.P.C would not
attracted. Therefore mere inclusion of 505(1)(b) of IPC in the First
Information Report is not sufficient to deviate from the procedure
mandated under Sections 155(1)and (2) of Cr.P.C. Hence the arguments
of the learned counsel appearing for the third respondent is not
acceptable.
18. Further the learned counsel for the third respondent relied
on the provisions under Section 2(d) of Cr.P.C., which reads as follows:
“2(d) complaint means any allegation made orally or in
writing to a Magistrate, with a view to his taking action under this
Code, that some person, whether known or unknown, has committed
the offence, but does not include a police report.
Explanation: A report made by a police officer ia case
which discloses, after investigation , the commission of a non
cognizable offence shall be deemed to be a complaint; and the police
officer by whom such report is made shall be deemed to be the
complainant”
19. But in this case the police registered the First Information
Report only for cognizable offence and Section 2(d) of Cr.P.C., is on
different context and section 2(d) of Cr.P.C will not come into play in this
case, because as per Section 2(d) of Cr.P.C. after investigation any report
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.563 of 2019
relating to the cognizable offence in which code such a report is to be
treated as a complaint of police officer concerned. But in this case the
averments of complaint discloses the non cognizable offence. Thereby the
arguments of the learned counsel appearing for the third respondent
cannot be accepted.
20. In this case First Information Report has been registered
under Sections 290 of IPC and Section 75(1)(c) of Tamil Nadu City Police
Act and thereafter without any allegation in the complaint the Section
505(1)(b) of IPC was inserted by handwritten and the learned Magistrate
also refused to remand under Section 505(1)(b) of IPC, thereby the
police ought to have followed the procedures contemplated under Section
155 of Cr.P.C. The section 505(1)(b) of IPC was handwritten without any
material to attract the said provision. Even according to the prosecution
already at the time of remand itself the Section 505(1)(b) of IPC was
rejected, while so thereafter the police have to obtain specific orders
from the learned Magistrate to investigate the case for the offences
under Sections 290 of IPC and 75(1)(c) of Tamil Nadu City Police Act.
Therefore in this case the procedures under Section 155 of Cr.P.C have
not been followed.
21. So far as section 75(1)(c) of Tamil Nadu City Police Act is
concerned Thoothukudi District has not been notified to invoke the
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.563 of 2019
Tamil Nadu City Police Act and thereby also the charge against the
petitioner is liable to be quashed.
22. The first respondent police have filed final report for the
offences under Section 290 of IPC and Section 75(1)(c) of Tamil Nadu
City Police Act. As far as offence under Section 290 of IPC is concerned
as per averments of the charge sheet the petitioner raised slogan that
“Fascist B.J.P down down” (gh.rp.r. gh.[h.fh. Ml;rp xopf),. Now it is relevant
to extract the provisions under Section 290 of IPC.
“290. Punishment for public nuisance in cases not otherwise
provided for —
Whoever commits a public nuisance in any case not otherwise punishable by this
Code, shall be punished with fine which may extend to two hundred rupees
23. On careful perusal of the above section no any averments in
the charge sheet to attract the said provision. Further the offence under
Section 290 of IPC is punishable with fine which may extend to two
hundred rupees.
24. The First Information Report and the charge sheet discloses
that the petitioner only raised slogan as 'Fascist B.J.P' (gh.rp.r. gh.[h.fh.
Ml;rp xopf) and those words do not constitute any offence and it is trivial
in nature . Therefore as discussed supra, the charge sheet in S.T.C.No.
324 of 2018 on the file of the learned Judicial Magistrate No.III,
Thoothukudi is liable to be quashed.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.563 of 2019
25. Accordingly this Criminal Original Petition is allowed and
the proceedings in S.T.C.No.324 of 2018 on the file of the learned
Judicial Magistrate No.III, Thoothukudi is quashed. Consequently
connected miscellaneous petitions are closed.
16.08.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
aav
To
1. The Judicial Magistrate No.III, Thoothukudi
2. The Inspector of Police
Pudukottai Police Station,
Thoothukudi District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.563 of 2019
P.DHANABAL, J.
aav
Crl.O.P.(MD).No.563 of 2019
16.08.2023
https://www.mhc.tn.gov.in/judis
