Madras High Court
K.S.Rajendran vs State Rep By on 1 December, 2020
Author: J.Nisha Banu
Bench: J.Nisha Banu
Crl.O.P.(MD).No.12657 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.12.2020
CORAM:
THE HONOURABLE MRS. JUSTICE J.NISHA BANU
Crl.O.P.(MD).No.12657 of 2020
1.K.S.Rajendran
2.N.Ramesh
3.R.Vairamani
4.M.Anandakumar ... Petitioners/Accused
vs.
1.State Rep by
The Inspector of Police,
Aruppukottai Taluk Police Station,
Aruppukottai,
Virudhunagar District – 626 004.
Crime No.138 of 2016
2.Mr.Shanmugaraj
Head Constable 209,
Aruppukottai Taluk Police Station,
Aruppukottai,
Virudhunagar District. - 626 004. ... Respondents
Prayer : This Criminal Original Petition has been filed under Section
482 of Criminal Procedure Code, to call for the records pertaining to the case in
S.T.C.No.2323 of 2016, on the file of the learned Judicial Magistrate,
Aruppukottai and quash the same as against the petitioners.
For Petitioner : Mr.M.V.Kalai Chithram
For R1 : Ms.S.E.Veronica Vincent
Government Advocate (Crl.Side)
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Crl.O.P.(MD).No.12657 of 2020
ORDER
This Criminal Original Petition has been filed to call for the records pertaining to the charge sheet in S.T.C.No.2323 of 2016, for the offences under Sections 341, 143, 188 of IPC, on the file of the learned Judicial Magistrate, Aruppukottai and quash the same as illegal.
2.The learned counsel for the petitioners would state that the 1st petitioner is the founder and the President of Sudhesi Makkal Thondu Iyakam which is duly registered under the Tamil Nadu Societies Registration Act, 1975, carrying on various activities towards social welfare and awareness in and around Virudhunagar District. On 18.04.2016, the petitioners canvassed about the awareness of NOTA and its significance to the public in Balavanatham Vadakupatti Bus Stop and at that point of time, the 2nd respondent/Mr.Shanmugaraj who is a politician along with his party members asked them to stop such canvassing and when they refused to do so, as a ruling party, they have instructed the 1st respondent/police to register a case. Accordingly, a case was registered in Crime No.138 of 2016 for the offences under Sections 341, 143 and 188 IPC on the complaint given by the 2nd respondent alleging that the petitioners caused disturbance to the free flow of public on the road from Virudhunagar to Aruppukottai. The learned counsel http://www.judis.nic.in 2/8 Crl.O.P.(MD).No.12657 of 2020 would further state that on the face of FIR, it does not make out any offence and that the issue in the present case is covered by the decisions of this Court in CRL.OP(MD)No.3770 of 2012 dated 06.06.2018 and Jeevanantham vs. State reported in 2018 (2) K.W. (Crl) 606.
3.The learned Government Advocate (Crl.Side) would state that without any permission, the petitioners canvassed about the awareness of NOTA and caused disturbance to the free flow of public and she would fairly state that no violence or untoward incident had taken place.
4.Heard the learned counsel for the petitioner as well as the learned Government Advocate (Crl.Side) for the 1st respondent.
5.In the decision relied on by the petitioners in CRL.OP(MD)No. 3770 of 2012, dated 06.06.2018, this Court in similar circumstances, has held as follows:-
4.This Court is of the view that Section 188 of IPC can be invoked 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 http://www.judis.nic.in 3/8 Crl.O.P.(MD).No.12657 of 2020 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."
5.It is not in dispute that during the relevant time no prohibitory order was in force. The petitioner had obtained permission to conduct the demonstration. Again, to make out an offence under Section 143 of IPC, it must be shown that the petitioner was a member 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, 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 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 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 petitioner http://www.judis.nic.in 4/8 Crl.O.P.(MD).No.12657 of 2020 exhibited criminal force or his object was to overawe by criminal force the Government officials. He did not resist the execution of any law or any legal process. He did not commit any criminal mischief or any criminal trespass or any other offence. No where it is shown in the final report that the object to the assembly of which the petitioner constituted a part would fall under Section 141 of IPC.
7.Therefore, this Court is of the view that the offences under Section 143 is clearly not made made out. That apart, as rightly contended by the learned counsel for the petitioner disobedience per se will not attracted Section 188 of IPC. It must be shown that on account of such disobedience on the part of the petitioner of a duly promulgated order by a public servant, 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.
8.This Court is clearly of the view that even if all the averments set out in the final report are taken as true, no case is made out against the petitioner. Therefore, the impugned proceedings in C.C.No.146 of 2011 on the file of the learned District Munsif cum Judicial Magistrate, Andipatti are quashed.
6.In yet another relied on decision reported in 2018 (2) K.W. (Crl) 606, Jeevanantham vs. State, this Court has held as follows:-
''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.'' http://www.judis.nic.in 5/8 Crl.O.P.(MD).No.12657 of 2020
7.In my considered opinion, the above decisions are squarely applicable to present case on hand. On 18.04.2016, the petitioners canvassed about the awareness of NOTA and its significance to the public in Balavanatham Vadakupatti Bus Stop and if the assembly of persons were made to express dissatisfaction of the governance and claiming for minimum rights that are guaranteed to a ordinary citizen and if such an assembly of persons are to be trifled by registering an FIR under Section 143 of IPC, no democratic dissent can ever be shown by the citizens and such prohibition will amount to violation of fundamental rights guaranteed under the Constitution and therefore, I am inclined to quash the FIR.
8.Accordingly, the impugned proceedings in S.T.C.No.2323 of 2016, on the file of the learned Judicial Magistrate, Aruppukottai, are quashed and the Criminal Original Petition is allowed.
bala/vrn 01.12.2020 NOTE: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
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1.The Inspector of Police, Aruppukottai Taluk Police Station, Aruppukottai, Virudhunagar District – 626 004.
Crime No.138 of 2016
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
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bala/vrn ORDER MADE IN Crl.O.P.(MD).No.12657 of 2020 Dated : 01.12.2020 http://www.judis.nic.in 8/8