Madras High Court
Sagul Ameer vs State Rep By on 5 November, 2020
Author: R. Pongiappan
Bench: R. Pongiappan
Crl.O.P.No.30546 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :05.11.2020
CORAM:
THE HONOURABLE MR. JUSTICE R. PONGIAPPAN
Crl.O.P.No.30546 of 2019 &
Crl.M.P.No.16562 of 2019
1.Sagul Ameer
2.Akbar Ali
3.Mohamed Ibrahim
4.Meharajbanu
5.Jahangeer Basha .. Petitioners
Vs.
State rep by
The Sub-Inspector of Police,
Perambalur Police Station,
Perambalur
(Crime No.484 of 2018) .. Respondent
PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C.
praying to call for the records pertaining to Cr.No.484 of 2018 on the file
of the 1st respondent herein and quash the same as illegal.
For Petitioners : Mr.I.Abdul Basith
For Respondent : Mr.S.Karthikeyan
Additional Public Prosecutor
1/8
http://www.judis.nic.in
Crl.O.P.No.30546 of 2019
ORDER
This Criminal Original Petition has been filed seeking for the relief to call for the records relating to the FIR in Crime No.484 of 2018 on the file of the respondent police and quash the same.
2. The case of the prosecution is that on 27.07.2018, at 03.30 p.m., the petitioners along with one Paisal were protested in the public road without any prior permission demanding arrest of culprit, following the mysterious death of one Shafiullah Babu. Therefore, a case has been registered against these petitioners and one Paisal in crime No.484 of 2018 for the offence under sections143, 188 & 341 IPC.
3. Heard Mr.I.Abdul Basith, learned counsel for the petitioners and Mr.S.Karthikeyan, learned Additional Public Prosecutor appearing for the respondent police.
4. This Court is of the view that Section 188 of IPC can be invoked 2/8 http://www.judis.nic.in Crl.O.P.No.30546 of 2019 only if there has been a disobedience of a duly promulgated order by a public servant. The said provision reads as under:
“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 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.” 3/8 http://www.judis.nic.in Crl.O.P.No.30546 of 2019
5. It is not in dispute that during the relevant time, no prohibitory order was in force. To make out an offence under section 143 of IPC, it must be shown that the petitioners were members of an unlawful assembly. What is unlawful assembly is defined in Section 141 of IPC. The said provision reads as under:
“141. 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— First — To overawe by criminal force, or show of criminal force, 1the 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 Second — To resist the execution of any law, or of any legal process; or Third — To commit any mischief or criminal trespass, or other offence; or Fourth — 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 4/8 http://www.judis.nic.in Crl.O.P.No.30546 of 2019 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 Fifth — 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.”
6. It is not the case of the prosecution that the petitioners exhibited criminal force or their object was to overawe by criminal force the Government Officials. They did not resist the execution of any law or any legal process. They did not commit any criminal mischief or any criminal trespass or any other offence. No where it is shown in the FIR that the object to the assembly of which the petitioners constituted a part would fall under section 141 of IPC.
7. Insofar as the offence under section 341 IPC which prescribes punishment for wrongful restraint is concerned, wrongful restraint has been defined in Section 339 IPC. To bring home an offence under section 5/8 http://www.judis.nic.in Crl.O.P.No.30546 of 2019 341 IPC the prosecution must prove,
(a) that the wronged person had a right to proceed on a particular way over land or water;
(b) that the accused obstructed or prevented the wronged person from proceeding along the particular way;
(c) that the accused caused such obstruction voluntarily; and
(d) lastly, the obstructor must not have reason to believe in good faith that he had a lawful right to obstruct.
8. In this case, a whole reading of the FIR will disclose the fact that the petitioners herein had not obstructed or prevented the wronged person from proceeding on a particular way. Therefore, this Court is of the view that the offence under sections 143, 341 and 188 IPC is not made out. That apart, as rightly contended by the learned counsel appearing for the petitioners disobedience per se will not attract Section 188 of IPC. It must be shown that on account of such disobedience on the part of the petitioners of a duly promulgated order by a public servant, 6/8 http://www.judis.nic.in Crl.O.P.No.30546 of 2019 something adverse happened. In this case, no such event is alleged to have happened. Therefore, this Court is of the view that Section 188 of IPC is also not made out.
9. This Court is clearly of the view that even if all the averments set out in the FIR are taken as true, no case is made out against the petitioners. Therefore, the proceedings in Crime No.484 of 2018 on the file of the respondent police are quashed insofar as the petitioners herein are concerned.
10. Accordingly, this Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is closed.
05.11.2020 Index : Yes/No Internet: Yes/No Speaking/Non-speaking Orders nl R. PONGIAPPAN. J, 7/8 http://www.judis.nic.in Crl.O.P.No.30546 of 2019 nl To
1.The Sub-Inspector of Police, Perambalur Police Station, Perambalur
2.The Public Prosecutor, High Court, Madras.
Crl.O.P.No.30546 of 2019
05.11.2020 8/8 http://www.judis.nic.in