Madras High Court
V.Sivakumar vs State Represented By on 11 August, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
CRL.O.P.No.6173 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P.No.6173 of 2021 and
and Crl.MP.No.4082 of 2021
1.V.Sivakumar
2.Muthuviswanathan
3.Radha @ Subramani
4.R.P.Kandasamy
5.N.Dhanapal
6.S.Kumaravel ... Petitioners
Vs.
1.State Represented by
The Inspector of Police,
Uthiyur Police Station,
Tiruppur District
(crime No.774 of 2020)
2. Gopalakrishnan ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C.
praying to call for the records relating to the crime No.774 of 2020 on the file
of the Inspector of Police, Uthiyur Police Station, Tiruppur District and quash
the same by allowing this criminal original petition.
For Petitioners : Mr.M.Guruprasad
For Respondents
For R1 : Mr.A.Gopinath,
Government Advocate(crl.side)
https://www.mhc.tn.gov.in/judis
1/12
CRL.O.P.No.6173 of 2021
ORDER
This petition has been filed to quash the F.I.R. in crime No.774 of 2020 registered by the first respondent police for offences under Sections 147, 294(b), 353, 342 & 506(i) of IPC, as against the petitioners.
2. The case of the prosecution is that the defacto complainant along with his contract workers, were doing the Foundation Work of the High-Tension Tower No.19/3 in survey No.1603 of Sankarandampalayam Village, Dharapuram Taluk, Tiruppur District on 22.09.2020. The said work is a part of TANTRANSCO's “Virudhunagar-Coimbatore 765kV Transmission Project”. During their above work, on 22.09.2020 around 12.45 p.m., the petitioners herein along with 15 other persons, came into the said lands, uttered filthy languages, threatened the defacto complainant and his contract works and prevented their work.
3. The learned Counsel appearing for the petitioners would submit that the petitioners are innocent persons and they have not committed any offence as alleged by the prosecution. Without any base, the first respondent police registered a case in crime No.774 of 2020 for offences under Sections 147, 294(b), 353, 342 & 506(i) of IPC, as against the petitioners. Hence he https://www.mhc.tn.gov.in/judis 2/12 CRL.O.P.No.6173 of 2021 prayed to quash the same.
4. The learned Government Advocate (crl.side) would submit that the investigation is almost completed and the respondent police have only to file final report.
5. Heard Mr.M.Guruprasad, learned counsel appearing for the petitioners and Mr.A.Gopinath, learned Government Advocate(crl.side) appearing for the first respondent.
6. It is to be noted that while exercising the power under Section 482, 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 Supp (1) Supreme Court Cases 335, has been held as follows :
“........
(a) where the allegations made in the First Information https://www.mhc.tn.gov.in/judis 3/12 CRL.O.P.No.6173 of 2021 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 https://www.mhc.tn.gov.in/judis 4/12 CRL.O.P.No.6173 of 2021 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.”
7. 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 https://www.mhc.tn.gov.in/judis 5/12 CRL.O.P.No.6173 of 2021 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.-
8. 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.
9. Further, to attract the offence under Section 294(b) of IPC, there must be an uttering of words to affect the person who lodged the complaint. In this regard it is relevant to extract the Section 294(b) of IPC, as follows :-
"294. Obscene acts and songs —Whoever, to the annoyance of others— (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with https://www.mhc.tn.gov.in/judis 6/12 CRL.O.P.No.6173 of 2021 both."
Admittedly, there is absolutely no words uttered by the petitioners as such to constitute the offence under Section 294(b) of IPC, there is no averments and allegations. Further the charges do not show that on hearing the obscene words, which were allegedly uttered by the petitioners, the witnesses felt annoyed. No one has spoken about the obscene words, they felt annoyed and in the absence of legal evidence to show that the words uttered by the petitioners annoyed others, it cannot be said that the ingredients of the offence under Section 294(b) of IPC is made out. It is relevant to rely upon the judgment reported in 1996(1) CTC 470 in the case of K.Jeyaramanuju Vs. Janakaraj & anr., which held as follows :-
"To prove the offence under Section 294 of IPC mere utterance of obscence words are not sufficient but there must be a further proof to establish that it was to the annoyance of others, which is lacking in the case."
The above judgment is squarely applicable to the present case and therefore, the offence under Section 294(b) of IPC is not at all attracted as against the petitioners.
10. Insofar as the offence under Section 506(i) of I.P.C is concerned, to attract the offence, threat and intention to cause an alarm are main https://www.mhc.tn.gov.in/judis 7/12 CRL.O.P.No.6173 of 2021 ingredients. The third ingredient is that the intention must be to cause any person to do any act which he is not legally bound to do or to omit to do any act which that person is legally entitled to do, subsequent to the main ingredients. Whereas in the case on hand, even according to the case of the prosecution, the alleged threats issued by the petitioners were only empty threats and they had no effect on the complainant.
11. In this regard, It is relevant to rely upon the judgment of this Court made in Crl.O.P.(MD)No.11030 of 2014 in the case of Abdul Agis Vs. State through the Inspector of Police, which reads as follows:-
“7.It is seen from the statements recorded under Section 161(3) of Cr.P.C. of the second respondent/ defacto complainant that it does not contain any obscene words, which were uttered by the petitioner herein and the entire allegations are very simple in nature. It is also seen from the statement of one Uthami, that the petitioner threatened the defacto complainant with dire consequences when he dashed the defacto complainant. The entire allegations are trivial in nature. Further, to attract the offence under Section 506(i) of https://www.mhc.tn.gov.in/judis 8/12 CRL.O.P.No.6173 of 2021 I.P.C., there was a threatening only by words. As pointed by the learned counsel appearing for the petitioner, the threat should be a real one and not just a mere word when the petition uttering does not exactly mean what he says and also when the person to whom threat is launched does not feel threatened actually. Therefore, the offences under Sections 294(b) and 506(i) of I.P.C. are not made out as against the petitioner herein and also the entire criminal proceedings is clear an abuse of process of Court. Therefore, this Court is inclined to quash the entire proceedings.”
12. 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.
13. Accordingly, this Criminal Original Petition stands allowed and the FIR in crime No.774 of 2020 registered by the first respondent police for https://www.mhc.tn.gov.in/judis 9/12 CRL.O.P.No.6173 of 2021 offences under Sections 147, 294(b), 353, 342 & 506(i) of IPC is hereby quashed as against the petitioners alone. Consequently, connected miscellaneous petition is closed.
11.08.2022 Internet : Yes / No Index : Yes / No Speaking / Non Speaking order lok https://www.mhc.tn.gov.in/judis 10/12 CRL.O.P.No.6173 of 2021 https://www.mhc.tn.gov.in/judis 11/12 CRL.O.P.No.6173 of 2021 G.K.ILANTHIRAIYAN, J.
lok To
1.The Inspector of Police, Uthiyur Police Station, Tiruppur District
2.The Public Prosecutor, High Court, Madras.
Crl.O.P.No.6173 of 2021
11.08.2022 https://www.mhc.tn.gov.in/judis 12/12