Madras High Court
Rajkumar vs State Represented By on 28 March, 2023
Crl.O.P.No.6865 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.03.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.CHANDRASEKHARAN
Crl.O.P.No.6865 of 2023
Rajkumar ... Petitioner
Vs.
State represented by,
The Inspector of Police,
Sirkazhi Police Station,
Mayladuthurai District.
Crime No.1404 of 2020. ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C.
praying to call for the records and quash the proceedings in Crime No.1404
of 2020 pending on the file of the 1st respondent police.
For Petitioner : Mr.P.Muthamizhselvakumar
For Respondent : Mr.S.Santhosh
Government Advocate (Crl. Side)
ORDER
This Criminal Original Petition is filed to call for the records and quash
the proceedings in Crime No.1404 of 2020 pending on the file of the 1st
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Crl.O.P.No.6865 of 2023
respondent police.
2. It is the submission of the learned counsel for the petitioner that the
petitioner is one of the accused in Crime No.1404 of 2020 registered for the
offences under Sections 143, 341, 188 and 269 of I.P.C. It is his further
submission that even assuming the petitioner participated in the protest, the
protest was a peaceful protest against the illegal mining activities. There was
no violence or illegal act committed by any of the participants in the protest.
3. The final report is not filed for the offences under Sections 143, 341
and 269 of I.P.C. Police cannot register FIR for the offences punishable under
Section 188 of I.P.C. The offences under Section 143, 341 and 188 of I.P.C.
are punishable with imprisonment for a term less than one year. Therefore,
even if a final report is filed now, there is a bar under Section 468 of the
Cr.P.C. for taking cognizance of the offences and thus, he prays for quashing
the FIR.
4. In response, learned Government Advocate submitted that the
investigation is not complete and final report is not filed.
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Crl.O.P.No.6865 of 2023
5. The FIR allegations are that on 04.11.2020 at about 20:20 hrs, when
the 144 Cr.P.C. prohibition order was in force, the accused in this case had
formed an unlawful assembly near Sirkazhi New Bus Stand and hosted the
protest against the arrest of one Ezhavalavan. The accused had not dispersed
the assembly, despite a warning and therefore, FIR came to be registered for
the offences under Sections 143, 341, 188 and 269 of I.P.C.
6. 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
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Crl.O.P.No.6865 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.-
7. 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
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Crl.O.P.No.6865 of 2023
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.
Similarly, there is no statement obtained from any member, individual or
vehicle driver as to whether they were prevented or criminally resisted from
proceeding further. Therefore, this Court is of the considered view that the
ingredients for prosecuting the petitioner under Section 143 and 341 IPC are
not made out and the continuation of trial would be a harassment to the
petitioner.
8. Section 188 of IPC defines disobedience to order duly promulgated
by public servant to spread infection as under:-
"188. Disobedience to order duly promulgated by Public
Servant:
Whoever, knowing that, by an order promulgated by a
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Crl.O.P.No.6865 of 2023
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 or tends to cause obstruction, annoyance
or injury, or risk of obstruction, annoyance or injury, to any
persons 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 tends 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."
9. 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 of IPC and to investigate the same without
getting proper permission from the concerned Jurisdictional Magistrate.
Here, there is no material to show that before registering the case, permission
of the concerned jurisdictional Magistrate has been obtained. In such
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Crl.O.P.No.6865 of 2023
circumstances, the respondent has no right to register the case and to
investigate the matter.
10. Further, with regard to the case registered under Section 269 of IPC,
though the case was registered on 04.11.2020, there is no material produced
so far, that the petitioner had knowingly attempted to spread infection of any
disease dangerous to life. And it is also not the case of the respondent that at
the time of the incident, the petitioner was affected by Covid-19, so that
gathering of accused in this case resulted in spread of COVID – 19.
11. Therefore, this Court is of the considered view that the petitioner
cannot be prosecuted for the offences under Sections 143, 341, 188 and 269
of I.P.C. That apart, the offence under Section 143 is punishable with
imprisonment of either description for a term which may extend to six
months, or with fine, or with both; the offence under Section 341 is
punishable with simple imprisonment for a term which may extend to one
month, or with fine which may extend to five hundred rupees, or with both
and the offence under Section 188 is punishable with imprisonment of either
description for a term which may extend to six months, or with fine which
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Crl.O.P.No.6865 of 2023
may extend to one thousand rupees, or with both.
12. 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 FIR was registered in this case on 04.11.2020. 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.1404
of 2020 against the petitioner is nothing but an abuse of process of law.
13. Therefore, the proceedings against the petitioner in Crime No.1404
of 2020 is hereby quashed and this Criminal Original Petition is allowed.
28.03.2023
ab
Internet:Yes
Index:Yes/No
Speaking/Non speaking order
Neutral Citation Case: Yes / No
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Crl.O.P.No.6865 of 2023
To:
1.State represented by,
The Inspector of Police,
Sirkazhi Police Station,
Mayladuthurai District.
2.The Public Prosecutor,
High Court of Madras.
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Crl.O.P.No.6865 of 2023
G.CHANDRASEKHARAN, J.
ab
Crl.O.P.No.6865 of 2023
28.03.2023
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