Madras High Court
Chitharthan vs The State Rep By on 6 June, 2023
Crl.O.P.No.12365 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.06.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.CHANDRASEKHARAN
Crl.O.P.No.12365 of 2023
and Crl.M.P.No.7628 of 2023
Chitharthan ...Petitioner
Vs.
1.The State Rep by
The Inspector of Police,
Chidambaram Town Police Station,
Cuddalore District.
(Crime No.916 of 2020)
2.Abdhul Kafar
S/o. Abdhul Lathif
Town Village Administrative Officer,
Poothakeny,
Chidambaram
Cuddalore District. ...Respondents
PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. praying
to call for the records made in F.I.R Crime No.916 of 2020 on the file of
Chidambaram Town Police Station, Chidambaram, the first respondent herein
and quash the same.
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Crl.O.P.No.12365 of 2023
For Petitioner : Mr.R.Sankarasubbu
For Respondents : Mr.Leonard Arul Joseph Selvam
Government Advocate(Criminal side)
(For R1)
ORDER
This Criminal Original Petition is filed to call for the records made in
F.I.R Crime No.916 of 2020 on the file of Chidambaram Town Police Station,
Chidambaram, the first respondent herein and quash the same.
2.The learned counsel for the petitioner submitted that petitioner is an
accused in First Information Report in Crime No.916 of 2020 being
prosecuted for the offences under Sections 143, 188 & 271 I.P.C. Petitioner is
a member of Congress Political party. On 29.06.2020, when Covid -19
restrictions was in force, without getting prior permission, petitioner along
with five others unlawfully assembled near Chidambaram Post office,
protested and raised slogans against the Central and State Government for
increased costs of petrol, thereby, causing spread of Corona virus among the
general public.
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Crl.O.P.No.12365 of 2023
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
petitioner 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 petitioner. Petitioner 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 petitioner 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:
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Crl.O.P.No.12365 of 2023
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;
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
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Crl.O.P.No.12365 of 2023
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 Section12.As
per Section 468 of Cr.P.C., the final report ought to have been
filed within a period of one year from the date of commission
of offence when an offence is punishable with imprisonment
which may extend to one year. The F.I.R. was registered in this
case on 21.07.2020. Till date, final report is not filed.
Therefore, even if the final report is filed now, in view of the
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Crl.O.P.No.12365 of 2023
bar under Section 468 of Cr.P.C., the Court cannot take
cognizance of the offences. In view of the above, continuance
of the criminal proceeding in Crime No.560 of 2020 against
the petitioners is nothing but an abuse of process of law.
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.The learned Government Advocate (Criminal side) opposed this
petition on the ground that petitioner was requested to stop the protest, but
they continued their protest on behalf of their political party and raised
slogans against the Government, thereby causing spread of Covid-19.
Therefore, First Information Report in Crime No.916 of 2020 was registered.
Thus, he prayed for dismissal of this petition.
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Crl.O.P.No.12365 of 2023
6.Considered the rival submissions and perused the records. It is
pertinent to refer to the offences for which FIR was registered in this case.
7.This Court in Crl.O.P.No.23022 of 2022 while dealing with quashing
of case registered under Section 143 & 341 I.P.C observed that only 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
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Crl.O.P.No.12365 of 2023
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.-
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
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Crl.O.P.No.12365 of 2023
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,
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Crl.O.P.No.12365 of 2023
or causes or tends to cause a riot or affray, shall be 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.Section 271 I.P.C reads as follows:-
271.Disobedience to quarantine rule – Whoever
knowingly disobeys any rule made and promulgated
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Crl.O.P.No.12365 of 2023
Government for putting any vessel into a state of quarantine,
or for regulating the intercourse of vessels in a state of
quarantine with the shore or with other vessels, or for
regulating the intercourse between places where an infections
disease prevails and other places, shall be punished with
imprisonment of either description for a term which may
extend to six months, or with fine, or with both.
This Section deals with disobedience of quarantine rule made and
promulgated by the Government for putting any vessel into a state of
quarantine etc. It is not a case where any vessel is involved. There is no
material produced to show that any rule is made and promulgated with regard
to quarantine. Thus, in the facts and circumstances of the case, this Court is of
the view that no ingredients are made out for prosecuting the petitioner under
Section 271 I.P.C.
11.As per Section 468 of Cr.P.C., the final report ought to have been
filed within a period of one year from the date of commission of offence when
an offence is punishable with imprisonment which may extend to one year.
The offences under Section 143,188 & 271 I.P.C. are punishable with less
than one year imprisonment. The F.I.R. was registered in this case on
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Crl.O.P.No.12365 of 2023
29.06.2020. Till date, final report is not filed. Therefore, even if the final
report is filed now, in view of the bar under Section 468 of Cr.P.C., the Court
cannot take cognizance of the offences. In view of the above, continuance of
the criminal proceeding in Crime No.916 of 2020 against the petitioner is
nothing but an abuse of process of law.
12.In conclusion, for the reasons stated above, this Court finds that
petitioner cannot be prosecuted for the offences under Sections 143,188 and
271 of I.P.C.
13.In this view of the matter, this Criminal Original Petition is allowed
and F.I.R in Crime.No.916 of 2020 pending on the file of the Inspector of
Police, Chidambaram Town Police Station, Cuddalore District, against the
petitioner is quashed. Consequently, connected miscellaneous petition is
closed.
06.06.2023
(3/3)
Internet :Yes
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Crl.O.P.No.12365 of 2023
Index :Yes/No
ep
To:
1.The State Rep by
The Inspector of Police,
Chidambaram Town Police Station,
Cuddalore District.
(Crime No.916 of 2020)
2.Abdhul Kafar
S/o. Abdhul Lathif
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Crl.O.P.No.12365 of 2023
Town Village Administrative Officer,
Poothakeny,
Chidambaram
Cuddalore District.
3.The Public Prosecutor,
High Court of Madras.
G.CHANDRASEKHARAN, J.
ep
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Crl.O.P.No.12365 of 2023
Crl.O.P.No.12365 of 2023
and Crl.M.P.No.7628 of 2023
06.06.2023
(3/3)
https://www.mhc.tn.gov.in/judis
