Madras High Court

Faisal @ Faisal Ahamed vs The Inspector Of Police on 8 June, 2023

                                                                                   Crl.O.P.No.12286 of 2023

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 08.06.2023

                                                          CORAM

                        THE HONOURABLE MR. JUSTICE G.CHANDRASEKHARAN

                                                   Crl.O.P.No.12286 of 2023
                                                             and
                                                   Crl.M.P.No.7495 of 2023

                Faisal @ Faisal Ahamed                                              ... Petitioner

                                                             Vs.

                1.The Inspector of Police,
                  Mangalam Police Station,
                  Tiruppur District.
                  (Crime No.313 of 2022)

                2.T.Pannari                                                         ... Respondents

                PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C., to call
                for the records of the Crime No.313 of 2022 on the file of the 1 st respondent
                police pending investigation and quash the same.


                                  For Petitioner       : Mr.Thiyagarajan.B

                                  For R-1              : Mr.Leonard Arul Joseph Selvam
                                                         Government Advocate (Crl. Side)




https://www.mhc.tn.gov.in/judis
                Page 1 of 10
                                                                                   Crl.O.P.No.12286 of 2023




                                                        ORDER

This Criminal Original Petition has been filed to call for the records of the

Crime No.313 of 2022 on the file of the 1st respondent police pending

investigation and quash the same.

2. The learned counsel for the petitioners submitted that First Information

Report is registered for the offences under Sections 143 and 341 IPC in Crime

No.313 of 2022, alleging that the accused with other persons had unlawfully

assembled and raised slogans against the Government at about 11.30 am on

22.09.2022 at Mangalam Junction. He further submitted that accused have not

committed any offence and registration of First Information 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

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Crl.O.P.No.12286 of 2023

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 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 https://www.mhc.tn.gov.in/judis

Crl.O.P.No.12286 of 2023

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 in his possession and under his management, has disobeyed;

and

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Crl.O.P.No.12286 of 2023

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

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 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

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Crl.O.P.No.12286 of 2023

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.313 of 2022 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 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 https://www.mhc.tn.gov.in/judis

Crl.O.P.No.12286 of 2023

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 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.” https://www.mhc.tn.gov.in/judis

Crl.O.P.No.12286 of 2023

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

considered as unlawful assembly and the members of alleged unlawful

assembly cannot be prosecuted for the offence under Section 143 IPC.