Madras High Court

Unknown vs The State Rep. By on 11 September, 2025

Author: N.Sathish Kumar

Bench: N.Sathish Kumar

                                                                                       Crl.O.P.No.20991 of 2025

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 11.09.2025

                                                         CORAM

                            THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                            Crl.O.P.No.20991 of 2025 and
                                         Crl.M.P.Nos.14457 & 14460 of 2025

                     1. Prabakaran
                     2. Muthukumarasamy
                     3. Ananthakumar
                     4. Thangaraj
                     5. Selvaraj
                     6. Rameshkumar
                     7. Murugesan
                     8. Maheshwaran
                     9. Eswaramoorthy
                     10. Subramaniyan
                     11. Deepakumar
                     12. Eswaramoorthy
                     13. Velusamy
                     14. Ravi
                     15. Suresh
                     16. Balasubramani
                     17. Suresh
                     18. Karuppasamy
                     19. Dhandapani
                     20. Ganthi
                     21. Manikkavasagam
                     22. Ponnusamy
                     23. Sivakumar
                     24. Velmurugan
                     25. Karthikesan




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                                                                                                Crl.O.P.No.20991 of 2025

                     26. Muthusamy
                                                                                          Petitioner(s)

                                                                     Vs

                     The State rep. by
                     Inspector of Police,
                     Mangalam Police Station,
                     Tiruppur. Crime No.176/2017

                                                                                          Respondent(s)

                     PRAYER: This Criminal Original Petition has been filed under Section
                     528 of B.N.S.S. Act, to call for the records in C.C.No.1062/2017 on the
                     file of Judicial Magistrate Court No.4, Tiruppur and quash the same as
                     against this petitioners.

                                  For Petitioner                 :Mr.R.Prabakar
                                  For Respondents               : Mr.K.M.D.Muhilan,
                                                                  Additional Public Prosecutor

                                                               ORDER

This Criminal Original Petition has been filed to quash the

C.C.No.1062/2017 on the file of Judicial Magistrate Court No.4,

Tiruppur.

2.FIR has been registered in Crime No.176 of 2017 by the

respondent Police against the petitioners and others. The allegations in

the FIR is that, on 11.04.2017, the petitioners, being social activists,

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along with others, without obtaining any prior permission from the

concerned authorities, unlawfully assembled in the place of incident and

started a protest against the Government not to open TASMAC Shop in

that area. Despite warnings, since the petitioners and their group did not

disperse, the Inspector of Police, Mangalam Police Station, Tiruppur,

registered the FIR in Crime No.176 of 2017 as against the petitioners,

who are arrayed as A1 to A26 and others for the offences under Sections

143, 341 and 188 IPC. and thereafter the final report has been filed in

C.C.No.1062 of 2017 before the learned Judicial Magistrate IV, Tiruppur.

Challenging the same, the present Criminal Original Petition has been

filed.

3.Learned counsel for the petitioners submitted that, even when the

entire prosecution case is taken on a face value, the same would not

constitute any offence and continuing the prosecution is nothing but

abuse of process of law. He would further submit that the Government

vide G.O.(Ms) No.409, Home (Court-IV) Department, dated 29.09.2021,

has withdrawn 868 cases registered against the protestors who involved

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in NEET (2014-2021) and TASMAC (2011-2021) agitations. Therefore,

he submitted that the present FIR also may be quashed.

4.Heard the learned Additional Public Prosecutor and perused the

entire materials available on record.

5.It is to be noted that, while exercising the power under Section

528 of Bharatiya Nagarik Suraksha Sanhita/Section 482 of Code of

Criminal Procedure, this Court should be slow, but at the same time, if

the Court finds that the entire materials collected by the prosecution,

even when taken as a whole, would not constitute any offence, in such

situation, directing the parties to undergo ordeal of trial will be a futile

exercise and it will infringe the right of the persons and in this regard, the

Apex Court in State of Haryana and others v. Bhajan Lal and others

reported in 1992 Supp (1) Supreme Court Cases 335, has held as

follows :

"........ (a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not

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prima facie constitute any offence or make out a case against the accused;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R.

do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) where the uncontroverted allegations made in the FIR or -complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act

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(under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

6.It is also relevant to note the definition of “Unlawful Assembly”

as under Section 141 IPC :

“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

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(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. Only when the alleged assembly fits into any of the above

circumstances, it could be construed as unlawful. The materials collected

by the prosecution do not show that the accused had shown any criminal

force to commit any mischief, crime or any offence or by way of criminal

force, tried to take possession of the property or deprive any person of a

right of way, or of the use of water or other incorporeal right of which he

is in possession of enjoyment. Similarly, it is not the case of the

prosecution that the accused had assembled to commit any offence. When

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the prosecution prima facie failed to establish that the assembly of five or

more persons was with a common object to commit any offence or falls

under any of the circumstances shown under the definition of unlawful

assembly under Section 141 IPC, mere assembly of more than five

persons cannot be construed as an unlawful assembly. Therefore, when

the people gathered to show their protest against opening of TASMAC

Shop in a democratic way, such a gathering, in the absence of any

ingredients under Section 141 IPC, cannot be construed as unlawful

assembly nor can be prosecuted under Section 143 IPC.

8.Similarly, to attract the offence under Section 188 IPC, there

must be disobedience to order duly promulgated by the public servant.

In this case, there is no material or evidence available to show that the

accused have assembled to resist the execution of any law and there is no

whisper whatsoever available in the First Information Report or in the

other materials to show that there was promulgation or there were any

prohibitory orders existing at the relevant point of time. Though the FIR

quotes Section 30(2) of the Police Act, 1861, this Court in Jeevanandam

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and others Vs. State rep. by the Inspector of Police reported in 2018-2-

L.W.(Crl) 606, has held that the promulgation issued under Section 30(2)

of the Police Act, 1861, must satisfy the test of reasonableness and it 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. Such a view

has also been followed by this Court in Moogambigai

S.Thirugnanasammantham and others v. State rep. by the Inspector of

Police, Karur, reported in 2021 0 Supreme [Mad] 555, wherein it has

been held as follows:

“(9).... with regard to quashing of the charge sheet for the offence under Section 188 IPC, this Court in Jeevanandam and others Vs. State rep. by the Inspector of Police reported in 2018-2-L.W.(Crl) 606 has relied a judgment in V.Gowthaman and others Vs. State rep. by its Inspector of Police, St.Thomas Mount Police Station, Chennai reported in '2018 (4) CTC 252' and held that the cognizance taken by the Magistrate under Section 188 IPC is not permissible and therefore, the prosecution of the accused under Section 188 IPC stands quashed."