Madras High Court
As Mathiyazagan vs State Rep By on 6 June, 2023
Crl.O.P.No.12355 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.12355 of 2023
and Crl.M.P.No.7609 of 2023
AS Mathiyazagan ...Petitioner
Vs.
1.State Rep by
The Inspector of Police,
Sethiyathope Police Station,
Cuddalore District.
2.R.Rajendiran
Sub-Inspector of Police,
Sethiyathope Police Station,
Cuddalore District. ...Respondents
PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. praying
to call for the records in Crime No.421 of 2017 on the file of the Inspector of
Police, Sethiyathope Police Station, Cuddalore District and quash the same.
For Petitioner : Mr.S.Manuraj
For Respondents : Mr.Leonard Arul Joseph Selvam
Government Advocate(Criminal side)
1/13
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Crl.O.P.No.12355 of 2023
ORDER
This Criminal Original Petition is filed to call for the records in Crime
No.421 of 2017 on the file of the Inspector of Police, Sethiyathope Police
Station, Cuddalore District and quash the same.
2.The learned counsel for the petitioner submitted that the allegations in
the First Information Report are that, on 22.11.2017 at about 10.45 a.m. near
Melvalayamadevi village Fair price shop, petitioner along with other accused
unlawfully assembled and protested against the Central and State Government
for raising the cost of sugar and reducing quantity of kerosene in Fair price
shop and that they had wrongfully restrained free flow of traffic and
movement of the public between 10.45 a.m. to 11.00 a.m. Therefore, the First
Information Report in Crime No.421 of 2017 was filed under Sections 143
and 188 I.P.C. Hence, this petition is filed for quashing.
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
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Crl.O.P.No.12355 of 2023
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:
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.12355 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
certain act or to take certain order with certain property
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Crl.O.P.No.12355 of 2023
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
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Crl.O.P.No.12355 of 2023
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 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 and other accused were requested to
stop the protest, but they continued their protest against the Government to
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Crl.O.P.No.12355 of 2023
reduce the costs of sugar in Fair price shop. Therefore, First Information
Report in Crime No.421 of 2017 was registered. Thus, he prayed for dismissal
of this petition.
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
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Crl.O.P.No.12355 of 2023
(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.-
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
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Crl.O.P.No.12355 of 2023
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
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
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Crl.O.P.No.12355 of 2023
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 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
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Crl.O.P.No.12355 of 2023
case and to investigate the matter.
10.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 and 188 I.P.C. are punishable with less than
one year imprisonment. The F.I.R. was registered in this case on 22.11.2017.
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.421 of 2017 against the petitioner is nothing but an
abuse of process of law.
11.In conclusion, for the reasons stated above, this Court finds that
petitioner cannot be prosecuted for the offences under Sections 143 and 188
of I.P.C.
12.In this view of the matter, this Criminal Original Petition is allowed
and F.I.R in Crime.No.421 of 2017 pending on the file of the Inspector of
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Crl.O.P.No.12355 of 2023
Police, Sethiyathope Police Station, Cuddalore District, against the petitioner
is quashed. Consequently, connected miscellaneous petition is closed.
06.06.2023
Internet :Yes
Index :Yes/No
ep
G.CHANDRASEKHARAN, J.
ep
To:
1. The Inspector of Police,
Sethiyathope Police Station,
Cuddalore District.
2.R.Rajendiran
Sub-Inspector of Police,
Sethiyathope Police Station,
Cuddalore District.
3.The Public Prosecutor,
High Court of Madras.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12355 of 2023
Crl.O.P.No.12355 of 2023
and Crl.M.P.No.7609 of 2023
06.06.2023
https://www.mhc.tn.gov.in/judis
