Madras High Court
K.M.Sherif vs State Represented By on 1 September, 2022
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
Crl.O.P.No.20390 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :01.09.2022
CORAM:
THE HON'BLE MR.JUSTICE N.SATHISH KUMAR
CRL.O.P.No.20390 of 2022
and Crl.M.P.No.13373 & 13374 of 2022
K.M.Sherif ... Petitioner
Vs.
1.State represented by
The Inspector of Police,
E-3, Teynampet Police Station,
Chennai.
(Crime No.404/2018)
2.Thirumal
Sub-Inspector of Police,
E-3, Teynampet Police Station,
Chennai. ... Respondents
PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C.,
to call for the records in C.C.No.763/2019 pending on the XVIII
Metropolitan Magistrate Court, Saidapet, Chennai and quash the same as
illegal and without jurisdiction.
For Petitioner : Mr.I.Abdul Basith
For R1 : Mr.Leonard Arul Joseph Selvam
Government Advocate (Crl.Side)
Page No.1 of 10
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.20390 of 2022
ORDER
The Criminal Original Petition is filed under Section 482 of Cr.P.C., to call for the records in C.C.No.763/2019, for the offence under Sections 143, 188, 353 I.P.C. and Section 7 of Criminal Law Amendment Act, 2009, pending on the XVIII Metropolitan Magistrate Court, Saidapet, Chennai and quash the same as illegal and without jurisdiction.
2. It is the case of the prosecution that the petitioner along with 22 other persons has planned to siege the house of Rajnikath demanding apology for his remark against the people who protested against sterlite plant in Tuticorin as anti-social and the petitioner also along with other 22 others attempted to protest in the public place without any prior permission and disobeyed and prevented the public servants from discharging their duty.
3.It is the contention of the learned counsel for the petitioner that the petitioner is a member of political party and participated in the protest and raised voice for public cause and public welfare in a peaceful Page No.2 of 10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.20390 of 2022 manner. Thereby, the petitioner has been maliciously roped into the above baseless prosecution by the respondent police.
4.Learned Government Advocate [Criminal Side] submitted that the accused along with others has planned to siege the house of Rajnikath demanding apology for his remark against the people who protested against sterlite plant in Tuticorin as anti-social and also attempted to protest in the public place without any prior permission and disobeyed and prevented the public servants from discharging their duty, thereby he has been prosecuted.
5. It is to be noted that while exercising the power under Section 482 of Cr.P.C., the Court should be slow, at the same time, if the Court finds that from the entire materials collected by the prosecution 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 Vs. Bhajan Lal and Others reported in 1992 Page No.3 of 10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.20390 of 2022 Supp (1) Supreme Court Cases 335, has been 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 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 (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 Page No.4 of 10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.20390 of 2022 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:
'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
(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 Page No.5 of 10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.20390 of 2022 to do, or to omit to do what he is legally entitled to do.'
7. Only when the assembly fit 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 or tried to take possession of the property or right to use of incorporeal right which is in possession of enjoyment of others or rights.
8. In this case also, the petitioner did not assemble unlawfully to commit any offence. of course, they have democratically siege the house of Rajnikath demanding apology for his remark against the people who protested against sterlite plant in Tuticorin as anti-social and the petitioner also along with other 22 others attempted to protest in the public place without any prior permission and such gathering cannot be said to be unlawful assembly. At any event, mere gathering of more than 5 persons will not amount to any offence, unless the action of such persons fit into any of the provision found in Section 141 to constitute Page No.6 of 10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.20390 of 2022 such assembly as unlawful assembly. In such view of the matter, this Court is of the view that continuation of prosecution is nothing but an abuse of process of law.
9.Similarly to attract the offence under Section 188 there must be disobedience to order duly promulgated by the public servant. In this case there is evidence available to show that the accused has assembled to resist or 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 were promulgation or there were any prohibitory order existed at the relevant point of time. In this regard it is relevant to refer to a judgment of a Single Bench of this Court in Moogambigai S.Thirugnanasammantham and others Vs. State rep. by the Inspector of Police, Karur reported in 2021 0 Supreme [Mad] 555, wherein it has been held as follows:
'....
(9) When the allegations in the FIR and the materials collected by the prosecution does not disclose the commission of any offence and make Page No.7 of 10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.20390 of 2022 out a case against the accused and the prosecution itself is instituted with an ulterior motive for wreaking vengeance, this Court can exercise power under Section 482 Cr.P.C. 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.'
10.Considering the above, this Court is of the view that mere launching of Final report by the prosecution itself is not sufficient to reach to the conclusion that offences are made out and the materials collected by the prosecution do not support for proving the case and continuing the prosecution on shaky or without any materials is clear abuse of process of law.
Page No.8 of 10https://www.mhc.tn.gov.in/judis Crl.O.P.No.20390 of 2022
11.Accordingly, this Criminal Original Petition is allowed and the final report filed in C.C.No.763/2019, for the offence under Sections 143, 188, 353 I.P.C. and Section 7 of Criminal Law Amendment Act, 2009, pending on the XVIII Metropolitan Magistrate Court, Saidapet, Chennai as against the petitioner stands quashed. Consequently, the connected miscellaneous petitions are closed.
01.09.2022 kas Index : yes / no Internet : yes / no Speaking / Non speaking order To
1.The XVIII Metropolitan Magistrate Court Saidapet Chennai.
N.SATHISH KUMAR, J.
kas Page No.9 of 10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.20390 of 2022
2.State represented by The Inspector of Police, E-3, Teynampet Police Station, Chennai.
3.Thirumal Sub-Inspector of Police, E-3, Teynampet Police Station, Chennai.
4.The Public Prosecutor, High Court of Madras, Chennai-104.
CRL.O.P.No.20390 of 2022
01.09.2022 Page No.10 of 10 https://www.mhc.tn.gov.in/judis