Madras High Court
K.Balabharathy vs The State on 28 November, 2017
Author: M.Dhandapani
Bench: M.Dhandapani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.11.2017 CORAM THE HONOURABLE MR. JUSTICE M.DHANDAPANI Crl.O.P.(MD)No.3005 of 2012 and M.P.(MD)Nos.1 and 2 of 2012 K.Balabharathy ... Petitioner Vs. 1.The State Represented by Inspector of Police, Town North Police Station, Dindigul, Dindigul District. (Crime No.430 of 2011) 2.A.Sekar (PDO, Natham), Scrutiny Committee (Head), Town North Police Station Limit, Dindigul Town, Dindigul District. ... Respondents PRAYER: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to call for the records in connection with the impugned charge sheet in C.C.No.155 of 2011 on pending on the file of learned Judicial Magistrate No.II, Dindigul, and quash the same. For Petitioner : Mr.D.Selvaraj ^For R1 : Mr.K.Anbarasan Government Advocate (Criminal side) For R2 : No Appearance :ORDER
This Criminal Original Petition has been filed to quash the Charge Sheet in C.C.No.155 of 2011 on the file of the learned Judicial Magistrate No.II, Dindigul.
2. Initially, the petitioner has been charged for an offence punishable under Section 3(1) of the Tamil Nadu Open Place (Prevention of Disfigurement) Act, 1959 [hereinafter referred to as ?the Act?] and later, the offences were altered into Section 4(1) r/w 4(A) of the Act. The charge against the petitioner is that without prior notice, on 02.04.2011, at about 7.00 a.m., the petitioner, who is the contestant in the Election in Dindigul Assembly Constituency, violating the Election Rules, tied the flags of political party of AIADMK and other alliance parties on either side of the road. On seeing the flags tied by the petitioner and other alliance party members, the Block Development Officer has given a compliant. Based on the compliant given by the Block Development Officer, the case was registered in Crime No.430 of 2011. Thereafter, upon investigation, a charge sheet was filed before the Judicial Magistrate Court No.II, Dindigul, in C.C.No.155 of 2011, which is challenged before this Court in this petition by invoking Section 482 of Cr.P.C.
3. According to the learned counsel for the petitioner, no reason has been adduced by the first respondent/complainant in the final report for alteration of charges against the petitioner/A2 and one Mohan/A1. However, the Court below had taken cognisance of the complaint and the investigation officer has also filed the charge sheet. According to the learned counsel for the petitioner, the prosecution launched against the petitioner is malicious, she did not commit any offence as alleged and without any evidence or document, she has been falsely implicated in this case. The learned counsel appearing for the petitioner would further submit that implicating the petitioner under Section 3 (1) of the Act, is not legally tenable. He would further submit that the complaint is totally misconceived and that the impugned final report filed by the first respondent/complainant is nothing, but abuse of process of law. Accordingly, he prayed for quashing the Criminal Case against the petitioner.
4. The first respondent has not filed any counter till date repudiating the grounds made by the petitioner. However, on instructions, the learned Government Advocate (Criminal Side) appearing for the State would submit that without prior permission from the Election Commission, if any person holds flag or tied the flag in either side of the Road, it is violative of Section 3 of the Act. Therefore, the learned Government Advocate would justify the criminal proceedings launched against the petitioner.
5. I have heard the learned counsel for the petitioner and the learned Government Advocate (Criminal Side) appearing for the State. For better appreciation, it is necessary to quote Section 3 of the Tamil Nadu Open Place (Prevention of Disfigurement) Act, 1959, which reads as ?3. Penalty for disfigurement by objectionable advertisement.- Whoever affixes to, or inscribes or exhibition, any place open to public view any objectionable advertisement of either description for a term which may extend to one year or with find which may extend to [five thousand rupees] or with both.?
6. On perusal of the above provision, it is seen that in order to prosecute an accused under Section 3 of the Act, there should be an allegation that the accused herself or instructed some one to tie the flag on either side of the Road. However, on perusal of 161 Cr.P.C. statement as well as the charge sheet, nowhere the prosecuting agency has stated that the accused herself or instructed some one to tie flag on the either side of the Road. In the absence of any material to implicate the accused in the criminal proceedings, the entire criminal proceedings are vitiated. In this context, it is relevant to extract the relevant portion of the judgment of the Hon'ble Apex Court in R.P.Kapur Vs. State of Punjab [AIR 1960 SC866] [AIR p.869, para 6] ''(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings e.g. want of sanction;
(ii) where the allegations in the first information report or the complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.''
7. In the present case, on perusal of 161 Cr.P.C. Statement given by the Block Development Officer as well as other officers, it is seen that they have only seen the flags of the AIADMK political party and the alliance flag furled on the Road side, but there is nothing on record as to who has installed the flag mast or instrumental in installing such flag mast to bring the petitioner within the provisions of Section 3 of the Act. In such view of the material, I am of the view that the criminal prosecution launched against the petitioner is not in sustainable in law.
8. In view of the above, I am inclined to interfere with the Charge Sheet filed by the respondent. Accordingly, charge sheet in C.C.No.155 of 2011, on the file of learned Judicial Magistrate No.II, Dindigul, is quashed. This Criminal Original Petition is allowed. Consequently, connected miscellaneous petitions are closed.
To
1.The Judicial Magistrate No.II, Dindigul.
2.The Inspector of Police, Town North Police Station, Dindigul, Dindigul District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.