Madras High Court

Haja Mohamed vs The State Represented By on 1 June, 2023

Crl.O.P.No.9874 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 01.06.2023

CORAM

THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN

Crl.O.P.No.9874 of 2023
and
Crl.M.P.No.6489 of 2023

1. Haja Mohamed
2. Rajasekar
3. Mohamed Thaiyub
4. Govinthasami
5. Sakthivel
6. Rajendiran
7. Rajiniganth
8. Abdul Rahim
9. Sozhan
10. Mohamed Ayub
11. Salman Barish
12. Mohamed Yahab
13. Anvar @ Mohamed Anvar
14. Haliraguman
15. Thiravida Selvan
16. Jeyakumar
17. Saravanan
18. Muththamizhan
19. Manavalavan ... Petitioners

1. The State represented by
The Sub-Inspector of Police,

Page 1 of 12

https://www.mhc.tn.gov.in/judis
Crl.O.P.No.9874 of 2023

Kattumannarkoil Police Station,
Cuddalore District.
(Crime No.139 of 2018) ... Respondent

Prayer: Criminal Original Petition has been filed under Section 482 of Cr.P.C, to
call for the records and quash the charge sheet in STC.No.165 of 2018 pending on
the file of the District Munsif cum Judicial Magistrate, Kattumannarkoil,
Cuddalore District as far as the petitioners are concerned.

For Petitioners ... Mr.G.Pugazhenthi
For Respondent ... Mr.Leonard Arul Joseph Selvam
Government Advocate (Crl.side)

ORDER

This Criminal Original Petition has been filed calling for the records and

quash the charge sheet in STC.No.165 of 2018 pending on the file of the District

Munsif cum Judicial Magistrate, Kattumannarkoil, Cuddalore District as far as the

petitioners are concerned.

2. The learned counsel for the petitioners submitted that final report in

STC.No.165 of 2018 was filed for the offences under Sections 143 and 188 of IPC,

alleging that the petitioners along with other accused have conducted road

blockage near Lalpettai cross road and raised demand to constitute Cauvery water

management board as held by the Hon'ble Supreme Court, without any permission.

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He further submitted that accused have not committed any offence and registration

of First Information Report and final report by the respondent police is illegal.

3. He further submitted that this Court in Crl.O.P.No.17903 of 2021 and

Crl.O.P.No.11291 of 2022 quashed the cases registered under Section 143 and 341

of IPC and 143, 188 and 341 of IPC respectively on the ground that the petitioners

therein were engaged in protest, which is their fundamental right. No public lodged

complaint and no public got affected, due to the protest conducted by the

petitioners. Petitioners had only raised slogans against the Government and the

same would not amount to commission of offence and it is a fundamental right

under the constitution of India.

4. The learned counsel for the petitioners relied upon a Judgment in

Mahaboob Basha Vs. Sambanda Reddiar and others reported in 1994(1)

Crimes, Page 477. He also relied upon a judgment in a batch of quash petitions,

reported in 2018-2-L.W. (Crl.) 606 in Crl.O.P. (MD).No. 1356 of 2018, dated

20.09.2018 in the case of Jeevanandham and others Vs. State rep. by the

Inspector of Police, Karur District, and this Court held in Paragraph-25, as

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follows :-

"25.In view of the discussions, the following guidelines are issued insofar as an offence under Section 188 of IPC, is concerned:

a) A Police Officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC.

b) A Police Officer by virtue of the powers conferred under Section 41 of Cr.P.C will have the authority to take action under Section 41 of Cr.P.C., when a cognizable offence under Section 188 IPC is committed in his presence or where such action is required, to prevent such person from committing an offence under Section 188 of IPC.

c) The role of the Police Officer will be confined only to the preventive action as stipulated under Section 41 of Cr.P.C and immediately thereafter, he has to inform about the same to the public servant concerned/authorised, to enable such public servant to give a complaint in writing before the jurisdictional Magistrate, who shall take cognizance of such complaint on being prima facie satisfied with the requirements of Section 188 of IPC.

d) In order to attract the provisions of Section 188 of IPC, the written complaint of the public servant concerned should reflect the following ingredients namely;

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i) that there must be an order promulgated by the public servant;

ii) that such public servant is lawfully empowered to promulgate it;

iii) that the person with knowledge of such order and being directed by such order to abstain from doing certain act or to take certain order with certain property in his possession and under his management, has disobeyed; and

iv)that such disobedience causes or tends to cause;

(a) obstruction,annoyance or risk of it to any person lawfully employed; or

(b) danger to human life, health or safety; or (c) a riot or affray.

e) The promulgation issued under Section 30(2) of the Police Act, 1861, must satisfy the test of reasonableness and can only be in the nature of a regulatory power and not a blanket power to trifle any democratic dissent of the citizens by the Police.

f) The promulgation through which, the order is made known must be by something done openly and in public and private information will not be a promulgation. The order must be notified or published by beat of drum or in a

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Gazette or published in a newspaper with a wide circulation.

g) No Judicial Magistrate should take cognizance of a Final Report when it reflects an offence under Section 172 to 188 of IPC. An FIR or a Final Report will not become void ab initio insofar as offences other than Section 172 to 188 of IPC and a Final Report can be taken cognizance by the Magistrate insofar as offences not covered under Section 195(1)(a)(i) of Cr.P.C.

h) The Director General of Police, Chennai and Inspector General of the various Zones are directed to immediately formulate a process by specifically empowering public servants dealing with for an offence under Section 188 of IPC to ensure that there is no delay in filing a written complaint by the public servants concerned under Section 195(1)(a)(i) of Cr.P.C.

5. In response the learned Government Advocate (Crl.Side) submitted that

the petitioners had unlawfully assembled and raised demand to constitute Cauvery

water management board as held by the Hon'ble Supreme Court, without any

permission. Therefore, First Information Report in Crime No.139 of 2018 was

registered and final report was filed. Thus, he prayed for dismissal of this petition.

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6. Considered the submissions and perused the records.

7. This Court in Crl.O.P.No.23022 of 2022 while dealing with quashing of

case registered under Section 143 & 341 IPC observed that if the unlawful

assembly confirms to the definition of unlawful assembly as defined under Section

141 IPC, the member of unlawful assembly can be prosecuted under Section 143

IPC. 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

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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.-

8. Section 143 of IPC reads as follows:

“143. Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six month, or with fine, or with both.”

In the case before hand, there is no specific allegations against the petitioner

or any of the member of the unlawful assembly that they used criminal force with

a common object of overawe the Central or State Government, resisted the

execution of any law or of any process, committed any mischief or criminal

trespass, take possession of any property, deprive any person of the enjoyment of a

right of way, or of the use of water or other incorporeal right, compelled any

person to do what he is not legally bound to do or to omit to do what he is legally

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entitled to do. In the absence of specific allegations in this regard, it is no doubt

that the alleged assembly cannot be considered as unlawful assembly and the

members of alleged unlawful assembly cannot be prosecuted for the offence under

Section 143 IPC. Therefore, this Court is of the considered view that the

ingredients for prosecuting the petitioner under Section 143 is not made out and

the continuation of trial would be a harassment to the petitioner.

9. Section 188 of IPC reads as follows:

“188. Disobedience to order duly promulgated by public servant — Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes to tender to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be

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punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

In the Judgment reported in 2018 2 LW (Crl) 606 [Jeevanandham and

others Vs The Inspector of Police Velayuthampalayam Police Station, Karur

District] dated 20.09.2018, it has been held that the police has no right to file a

case under Section 188 IPC and to investigate the same without informing about

the commission of offence under Section 188 IPC to the public servants

concerned/authorities to enable such public servants to give complaint in writing

before the learned Jurisdictional Magistrate who shall take cognizance of the

complaint, on being prima facie satisfied with the requirements of Section 188

IPC. No such procedure has been followed in this case. In such circumstances, the

respondent has no right to register the case and to investigate the matter.

10. Therefore, the charge sheet in STC.No.165 of 2018 pending on the file of

the District Munsif cum Judicial Magistrate, Kattumannarkoil, Cuddalore District