Madras High Court
Thanga Ananthan vs The State Represented By on 1 June, 2023
Crl.O.P.No.12250 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.12250 of 2023
and
Crl.M.P.No.7460 of 2023
1.Thanga Ananthan
2.Senthilnathan ...Petitioners
Vs.
1.The State represented by
The Inspector of Police,
Srimushnam Police Station,
Cuddalore District.
(Crime No.1057 of 2020)
2.Vaithiyanathan ...Respondents
PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. praying
to call for the records in Crime No.1057 of 2020 pending on the file of
Inspector of Police, Srimushnam Police Station, Cuddalore District and quash
the same.
For Petitioners : Mr.Manuraj
For R-1 : Mr.Leonard Arul Joseph Selvam
Government Advocate (Criminal side)
1/12
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Crl.O.P.No.12250 of 2023
ORDER
This Criminal Original Petition is filed to call for the records in Crime
No.1057 of 2020 pending on the file of Inspector of Police, Srimushnam
Police Station, Cuddalore District and quash the same.
2. The learned counsel for the petitioners submitted that the allegations
in the First Information Report are that on 28.09.2020 at about 10.30 a.m to
11.00 a.m., near the Registrar Office, Srimushnam, the accused in this case
Thanga Ananthan, Senthilnathan and 200 other accused without obtaining
prior permission obstructed the traffic. Reason for their arrest is that they had
not obtained prior permission for conducting the protest; that this protest was
arranged and conducted during the spread of Covid-19 and that the accused
had wrongfully restrained free flow of traffic and movement of the public from
10.30 a.m to 11.00 a.m.. Therefore, the First Information Report in Crime
No.1057 of 2020 was filed under Sections 143 and 188 I.P.C.
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,
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Crl.O.P.No.12250 of 2023
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 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
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Crl.O.P.No.12250 of 2023
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;
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
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Crl.O.P.No.12250 of 2023
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 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
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Crl.O.P.No.12250 of 2023
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 slogans against the
Government. Therefore, First Information Report in Crime No.1057 of 2020
was registered. Thus, he prayed for dismissal of this petition.
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
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Crl.O.P.No.12250 of 2023
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
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
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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
petitioners 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 entitled to do. In the absence of specific
allegations in this regard, it is no doubt that the alleged assembly cannot be
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Crl.O.P.No.12250 of 2023
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 petitioners under Section 143 is not made out and the
continuation of investigation 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 punished with
imprisonment of either description for a term which may
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Crl.O.P.No.12250 of 2023
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 First Information Report in Crime No.1057 of 2020
pending on the file of the 1st respondent against the petitioners is quashed.
11. Accordingly, this Criminal Original Petition is allowed.
Consequently, the connected Miscellaneous Petition is closed.
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Crl.O.P.No.12250 of 2023
01.06.2023
Internet :Yes
Index :Yes/No
gd
To:
1.The Inspector of Police,
Srimushnam Police Station,
Cuddalore District.
2.The Public Prosecutor,
High Court of Madras.
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Crl.O.P.No.12250 of 2023
G.CHANDRASEKHARAN, J.
gd
Crl.O.P.No.12250 of 2023
01.06.2023
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