Madras High Court
C.Vetrivelchezhiyan vs State Rep.By on 1 December, 2021
Author: T.V.Thamilselvi
Bench: T.V. Thamilselvi
1 Crl.O.P.No.20426 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.12.2021
CORAM
THE HON'BLE MRS. JUSTICE T.V. THAMILSELVI
Crl.O.P.No.20426 of 2019
and
Crl.M.P.No.10511of 2019
C.Vetrivelchezhiyan ... Petitioner
Versus
1.State rep.by
The Sub Inspector of Police,
K11 CMBT Police Station,
Koyembedu, Chennai 600 107.
Crime No.627 of 2018.
2.N.Rajasingh ... Respondents
Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C.,
praying to call for the records pertaining to the charge sheet in C.C.No. 646
of 2019 on the file of the learned Metropolitan Magistrate – V, Egmore,
Chennai in crime No. 627 of 2018 on the file of the 1 st respondent and
quash the same.
https://www.mhc.tn.gov.in/judis
2 Crl.O.P.No.20426 of 2019
For Petitioner : Mr.R.Sankarasubbu
for A.Suresh Sakthi Murugan
For R1 : Mr.A.Gokula Krishnan
Additional Public Prosecutor
For R2 : Service Awaited
ORDER
This petition has been filed seeking to quash the proceedings in C.C.No.646 of 2019 on the file of the learned Metropolitan Magistrate – V, Chennai.
2. The case of the prosecution is that on 22.05.2018, the petitioner and 41 others were standing nearer to MTC In & Out Gate, Koyembedu Bus Stand without any prior notice to the respondent police and they raised slogans against the police who was firing at Thoothukudi in the anti Sterlite protest and they disturbed the general public and transportation. while the respondent police asked the petitioners to disperse, they scolded the police personnel and pushed down the traffic barricades and caused damaged to the public property worth about Rs.25,000/ and prevented the Government officials from doing their duty. Hence, the complaint.
https://www.mhc.tn.gov.in/judis 3 Crl.O.P.No.20426 of 2019
3.The learned counsel for the petitioner submits that as per the final report the petitioners were charged under Sections 143, 188, 353 IPC r/w 3 of TNPPDL Act, but the above charges were not applicable to the present case and he also relied upon the decision reported in Jeevanandam V. State, (Madras) (Madurai Bench) 2018 (2) LW (Crl.) 606 : 2019 (1) MLJ (Criminal) 36 which reads 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 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 https://www.mhc.tn.gov.in/judis 4 Crl.O.P.No.20426 of 2019 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
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
(c) a riot or affray.
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 https://www.mhc.tn.gov.in/judis 5 Crl.O.P.No.20426 of 2019 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 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.
This Court will now proceed to deal with the independent cases
26. Crl.O.P.(MD).Nos. 11834, 15529, 15644, 15621, 16244, 16208, 16075 of In all these cases, it is seen that a Final Report has been filed for an Offence under Section 188 and 143 of IPC and cognizance has also been taken by the concerned Judicial Magistrates. In view of the above discussion, the cognizance of the Final Report under Section 188 of IPC is liable to be quashed. Insofar as the offence under Section 143 of IPC is concerned, in all the cases, the concerned Police Officer has quoted Section 30(2) of the Police Act, and therefore, has straight away proceeded to register an FIR under Section 143 of IPC. As stated above, a mere violation of the so-called promulgation under Section 30(2) of the Police Act will not make out an offence under Section 143 of IPC by straight away declaring an assembly of persons to be an unlawful assembly. The power under Section 30(2) of the Police Act is merely regulatory in nature. In fact, Section 32 of the Police Act itself provides for a penalty for disobeying an order issued under Section 30(2) of the Police Act with a https://www.mhc.tn.gov.in/judis 6 Crl.O.P.No.20426 of 2019 punishment of a fine not exceeding 200 rupees. Where as an offence under Section 143 of IPC is punishable with imprisonment for a term which may extend to 6 months. Therefore, a violation of the so-called promulgation under Section 30(2) of the Police Act will not by itself constitute an offence under Section 143 of IPC. In all the cases, the assembly of persons were made to express dissatisfaction of the governance and claiming for minimum rights that are guaranteed to a ordinary citizen. If such an assembly of persons are to be trifled by registering an FIR under Section 143 of IPC and filing a Final Report for the very same offence, no democratic dissent can ever be shown by the citizens and such prohibition will amount to violation of fundamental rights guaranteed under the Constitution.
2.Therefore, the Final Report for an offence under Section 143 of IPC is hereby quashed. Accordingly, all the Criminal Original petitions are allowed, and the Final Report filed in each of the case is hereby quashed.
27. Crl.O.P.(MD)Nos.1356,14873,14785 and 15866 of 2018 In all these cases, it is seen that a Final Report has been filed for an Offence under Section 188 and 143 of IPC and cognizance has also been taken by the concerned Judicial Magistrates. In view of the above discussion, the cognizance of the Final Report under Section 188 of IPC is liable to be quashed. Insofar as the offence under Section 143 of IPC is concerned, in all the cases, the concerned Police Officer has quoted Section 30(2) of the Police Act, and therefore, has straight away proceeded to register an FIR under Section 143 of IPC. As stated above, a mere violation of the so called promulgation under Section 30(2) of the Police Act will not make out an offence under Section 143 of IPC by straight away declaring an https://www.mhc.tn.gov.in/judis 7 Crl.O.P.No.20426 of 2019 assembly of persons to be an unlawful assembly. The power under Section 30(2) of the Police Act is merely regulatory in nature. In fact, Section 32 of the Police Act itself provides for a penalty for disobeying an order issued under Section 30(2) of the Police Act with a punishment of a fine not exceeding 200 rupees. Where as an offence under Section 143 of IPC is punishable with imprisonment for a term which may extend to 6 months. Therefore, a violation of the so called promulgation under Section 30(2) of the Police Act will not by itself constitute an offence under Section 143 of IPC. In all the cases, the assembly of persons were made to express dissatisfaction of the governance and claiming for minimum rights that are guaranteed to a ordinary citizen. If such an assembly of persons are to be trifled by registering an FIR under Section 143 of IPC and filing a Final Report for the very same offence, no democratic dissent can ever be shown by the citizens and such prohibition will amount to violation of fundamental rights guaranteed under the Constitution.
2.In these cases, the informant and the investigator are one and the same person. Therefore, there was no fair investigation in these cases. This issue is covered by the judgment of the Hon'ble Supreme Court in Mohanlal .Vs. The State of Punjab in Crl.A.No.1880 of 2011 referred supra. Therefore, the Final Report for an offence under Section 143 of IPC is hereby quashed. Accordingly, the Criminal Original petitions are allowed, and the Final Report filed in each of the case is hereby quashed.
and he also relied upon the decision reported in Manik Taneja V State of Karnataka (2015) 7 Supreme Court Cases 423 which reads as follows;
https://www.mhc.tn.gov.in/judis 8 Crl.O.P.No.20426 of 2019
10.So far as the issue regarding the registration of FIR under Section 353 IPC is concerned, it has to be seen whether by posting a comment on the Facebook of the traffic police, the conviction under that Section could be maintainable. Before considering the materials on record, we may usefully refer to Section 353 IPC which reads as follows:- "353. Assault or criminal force to deter public servant from discharge of his duty.- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
12. A reading of the above provision shows that the essential ingredients of the offence under Section 353 IPC are that the person accused of the offence should have assaulted the public servant or used criminal force with the intention to prevent or deter the public servant from discharging his duty as such public servant. By perusing the materials available on record, it appears that no force was used by the appellants to commit such an offence. There is absolutely nothing on record to show that the appellants either assaulted the respondents or used criminal force to prevent the second respondent from discharging his official duty. Taking the uncontroverted allegations, in our view, that the ingredients of the offence under Section 353 IPC are not made out.
4. He further pointed out with regard to the damages under Section 3 of TNPPDL Act, the prosecution has not furnished any material to show https://www.mhc.tn.gov.in/judis 9 Crl.O.P.No.20426 of 2019 how the damages caused to the barricades and as per seizure mahazar no barricades were recovered by the prosecution to support the case and he produced the copy of the mahazar.
5. The respondent police has produced Seizure Mahajar which reads as follows:
“rk;gtaplkhzJ nf/11 rp/vk;/gp/o fhty; epiya vy;iyf;Fl;laplkhFk;/ rk;gtaplkhdJ nf/11 rp/vk;/gp/o fhty;
epiyaj;jpypUe;J Rkhh; ½ fp/kp/ tlf;fhf mike;Js;sJ/ rk;gttplj;jpd; tlf;fhf njth;bk!; Xl;ly; . UjpkPdh ouhty;!;.
bgl;nuhy; g';f; kw;Wk; gpshl;ghuk; $tcwfh;yhy; rhiy fpHf;fpypUe;J nkw;fhf jpUk';fsk; nehf;fpa[k; nkw;fpypUe;J fpHf;fhf mUk;ghf;fk; nehf;fpa[k; bry;fpwJ/ rk;gtaplj;jpd;
bjw;fhf nfhak;ngL EiHthapypy; ,Ue;J tlf;fhf btspnaa[k;
bjw;fhf cs;nsa[k; g!;fy; te;J bry;fpd;wd/ ,t;thwhf rk;gtaplkhdJ mike;Js;sJ”.
6. As per the final report the petitioner along with others damaged the ten barricades worth about Rs.25,000/-, but as on record no material was furnished on the side of the prosecution to prove the barricades were https://www.mhc.tn.gov.in/judis 10 Crl.O.P.No.20426 of 2019 damaged by the accused persons, but the prosecution raised objection stating that they did not mention correct figures of the damages. But at the time of protest barricades were already damaged so they are not liable to charges under Section Section 3 of TNPPDL Act . On perusal of records even after filing the final report there is no material to prove the contention of the prosecution that the petitioner along with others damaged the barricades which is worth about Rs.25,000/- . Though as per the witness statement namely Asath Ali who stated that he received a sum of Rs.3,000/- fees for welding the barricades, he has not stated anything with regard to the damages of the barricades. Therefore, the said statement was not acceptable .
7. As far as Charges under Sections 143, 138 of IPC is concerned, the learned counsel for the petitioners relied upon the decision in “Jeevanandam V. State, (Madras) (Madurai Bench) 2018 (2) LW (Crl.) 606 : 2019 (1) MLJ” as per the above Judgment, the petitioners are not liable to be charged under Section 143 and 138 of IPC.
https://www.mhc.tn.gov.in/judis 11 Crl.O.P.No.20426 of 2019
8. With regard to the offence under Section 353 of IPC, the learned counsel for the petitioner submits that only the petitioner along with others where indulged in the protest, and they have not prevented the public authorities from doing their duties. On perusal of the report submitted by the prosecution reveals that on the alleged date of occurrence, the petitioner along with others made protest against the Gun fire in Thuthukudi Sterlite Corporation protest, before the koyembadu Bus stand and raised protest against the above incident, but, nowhere, they have mentioned specifically that they have prevented the police from doing their duty and therefore, the charges under Section 353 of IPC is not made out. Further more the proceedings in C.C.No. 646 of 2019 on the file of the Metropolitan Magistrate – V, Egmore is quashed and the proceedings pending against the other 42 accused were quashed.
8. In view of the above, the Criminal Original Petition is allowed and the proceedings in C.C.No.646 of 2019 pending on the file of Metropolitan Magistrate – V, is hereby quashed. Consequently, connected Crl.M.P.No.10511of 2019 is also closed.
01.12.2021 https://www.mhc.tn.gov.in/judis 12 Crl.O.P.No.20426 of 2019 pbl To
1.The Additional District and Sessions Judge, Villupuram.
2.The Inspector of Police, Valathy Police Station, Villupuram District.
3. The Public Prosecutor, Madras High Court, Chennai.
https://www.mhc.tn.gov.in/judis 13 Crl.O.P.No.20426 of 2019 T.V.THAMILSELVI, J.
pbl Crl.O.P.No.20426 of 2019 01.12.2021 https://www.mhc.tn.gov.in/judis