Madras High Court
Zunaith Ansari vs / on 3 December, 2021
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.O.P.No.19168 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.12.2021
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.No.19168 of 2021
and
Crl.M.P.No.10490 and 10491 of 2021
Zunaith Ansari .. Petitioner/Accused
/versus/
State Rep.by Inspector of Police,
B-1, North Beach Police Station,
Chennai.
(in Crime No.285 of 2019) ..Respondent/Complainant
PRAYER: Criminal Original Petition filed under Section 482 of the Code
of Criminal Procedure, praying to call for the records in C.C.No.227 of
2020 in Crime No.285 of 2019 on the file of the Respondent Police and
quash the same.
For Petitioner : Mr.A.Rajamohamed
For Respondent : Mr.R.Vinothraja
Government Advocate(Crl.Side)
*****
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https://www.mhc.tn.gov.in/judis
Crl.O.P.No.19168 of 2021
ORDER
This Criminal Original Petition has been filed to quash the proceedings in C.C.No.227 of 2020 on the file of the Metropolitan Magistrate Court No.VII, George Town, Chennai, for the offence under Sections 143, 290 of IPC, 41, 71A(1)of TNCP Act and 4A(1a) of the TNOPPD Act.
2.The gist of the case is that on 09.08.2019 at 16.20 hours, the respondent police along with other police personnels were on duty, at that time, 138 persons headed by Mr.Thoulan Parkavi, Deputy Chairman belonging to SDPI party assembled and participated in a Dharna against NIA, UAPA, RTI and grabbing of Article 370 in Indian Constitution Act enacted by the Parliament, without any prior permission from the concerned authority and caused disturbance to the public and movement of vehicles. The respondent Police warned the protesters and asked them to disperse. Since they refused to do so, they were arrested and a case against the petitioner/A9 and 9 others in Crime No.285 of 2019 for Page No.2 of 9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.19168 of 2021 offence under Sections 143, 290 of IPC and Sections 41, 71A(1) of TNCP Act, 1888, and 4A(1a) of TNOPD Act, 1859 was registered. On completion of investigation, charge sheet filed against the accused before the learned Metropolitan Magistrate Court No.VII, George Town, Chennai and the same was taken cognizance by the Court in C.C.No.227 of 2020.
3.The learned counsel for the petitioner submitted that the petitioner is a political and social activist raising voice for the public causes and public welfare. Whenever injustice and inaction of the government machineries are found, the petitioner would hold protest against the Government. In order to draw the attention of the Central Government, the petitioner along with several members had protested against NIA, UAPA, RTI and grabbing of Article 370 of Indian Constitution Act enacted by the Parliament. The learned counsel further submitted that the Hon'ble Supreme Court held that the right to freely assemble and right to freely express once view or constitutionally protected rights under Part III and their enjoyment can be only in Page No.3 of 9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.19168 of 2021 proportional manner through a fair and non-arbitrary procedure provided in Article 19 of Constitution of India. He further submitted that it is the duty of the Government to protect the right of freedom of speech and assemble that is essential to a democracy. According to Section 195(1)(a) of Cr.P.C., no Court can take cognizance of an offence under Section 188 of IPC, unless the public servant has written order from the authority. The petitioner or any others had never involved in any unlawful assembly and there is no evidence that the petitioner or others restrained general public and caused disturbance to the traffic.
4.He further submitted that it is highly improbable that no public witness was present in the place of occurrence and no reason given for non examination of public witnesses. Since, there is no offence made out in the charge sheet, having no other option except to file this quash petition. Therefore, he sought for quashing the investigation against the petitioner.
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5.In support of his submissions, the learned counsel for the petitioner relied upon the judgment of this Court in the case of “Jeevanandham and others Vs. State Rep. by Inspector of Police and another reported in (2018) 2 LW Crl 606.”
6.The learned Government Advocate (crl.side) appearing for the respondent Police submitted that in this case, on 09.08.2019, the petitioner and other protesters assembled at NSC Bose Road, Parry's signal held protest against NIA, UAPA, RTI and grabbing of Article 370 of Indian Constitution Act enacted by the Parliament without any prior permission and caused nuisance to the public and disturbance to the movement of vehicles. He further submitted that the respondent Police along with other Police warned the petitioner as well as the other protesters to disperse. Despite warning, the petitioner and others refused to disperse, on the other hand, they raised slogans and caused disturbance to the public.
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7.Considering the rival submissions and on perusal of the materials, it is admitted fact that the petitioner and others raised protest which is their fundamental right. In this case, no public lodged any complaint and no public got affected, due to the protest conducted by the petitioner and others. Hence, this Court finds that the petitioner and others have only raised slogans and shown protest against NIA, UAPA, RTI and grabbing of Article 370 of Indian Constitution Act enacted by the Parliament.
8.It is seen that the petitioner herein held protest to safeguard the guaranteed fundamental rights in the Constitution. From plain reading of the allegations in the charge sheet, it is seen that, the allegations are general in nature and no specific overt-act made against the petitioner to attract the said provisions. Raising slogans and showing protest itself would not amount to commission of offences. Showing Protest and dissent is the Hallmark of Democracy, which is a fundamental right guaranteed under the Constitution of India.
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9.The petitioner and others raised slogans against NIA, UAPA, RTI and grabbing of Article 370 of Indian Constitution Act enacted by the Parliament. Admittedly, in this case, the occurrence took place in a public place, in public view, surprisingly no public or independent witness examined by the prosecution, which causes serious doubt on the veracity of the complaint. This Court, in the case of “Jeevanandham and others Vs. State Rep. by Inspector of Police and another reported in (2018) 2 LW Crl. 606”, had clearly held that, the police officials are not empowered to register a case under Section 188 IPC and the same is barred under Section 195 Cr.P.C. There is no material to show that there was any promulgation of prohibitory orders which was communicated to the public and there was any disobedience by the petitioner. Further, in consequence to the protest, the prosecution failed to show whether any trouble occurred. The respondent Police failed to follow the guidelines issued by this Court in Jeevanandham (Cited Supra). In several this type of cases, this Court quashed the proceedings against the accused/protesters on similar ground.
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10.In the result, this Criminal Original Petition is allowed and the proceedings in C.C.No.227 of 2020 on the file of the Metropolitan Magistrate Court No.VII, George Town, Chennai for the offences under Sections 143, 290 of IPC, 41, 71A(1)of TNCP Act and 4A(1a) of the TNOPPD Act, is hereby quashed as against the petitioner. Consequently, the connected Criminal Miscellaneous Petitions are closed.
03.12.2021 Index: Yes/No Speaking order/non speaking order ari To
1.The Metropolitan Magistrate Court VII, George Town, Chennai.
2. Inspector of Police, B-1 North Beach Police Station, Chennai. (Crime No.285 of 2019
3.The Public Prosecutor, High Court, Madras.
Page No.8 of 9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.19168 of 2021 M.NIRMAL KUMAR,J.
ari CRL.O.P.No.19168 of 2021 and Crl.M.P.No.10490 and 10491 of 2021 08.10.2021 Page No.9 of 9 https://www.mhc.tn.gov.in/judis