Madras High Court
Vignesh vs The Inspector Of Police on 10 December, 2024
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.O.P.(MD)No.13188 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.12.2024
CORAM
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.(MD)No.13188 of 2024
and
Crl.M.P(MD) Nos.8101 and 8103 of 2024
Vignesh .. Petitioner
Vs.
1. The Inspector of Police
Virudhunagar Bazaar Police Station
Virudhunagar
Virudhunagar District
2. K.Chinnan
Sub Inspector of Police
Virudhunagar Bazaar Police Station
Virudhunagar
Virudhunagar District .. Respondents
PRAYER : Criminal Original Petition filed under Section 528 of BNSS,
to call for the records relating to the proceedings in CC No. 542 of 2023
on the file of the Judicial Magistrate No.1 Virudhunagar in so far as the
petitioner`s herein and quash the same as illegal .
For Petitioner : Mr. S.Paul Murugesh
For Respondents : Mr.A.Thiruvadi Kumar
No.1 Additional Public Prosecutor
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Crl.O.P.(MD)No.13188 of 2024
ORDER
This Criminal Original Petition has been filed to quash the proceedings in CC No. 542 of 2023 on the file of the Judicial Magistrate No.1 Virudhunagar.
2. The case projected against the petitioner and four others is that on 05.12.2020 at about 11.50 afternoon near MGR statue near Virudhunagar-Sattur the petitioner who belongs to Tamil Nadu Vellalar Munnetra kazhagam along with his party members had held Dharna questioning Chief Minister’s announcement that the name of the Vellalar can be used in other community also. Hence during Covid-19 restriction period the petitioner along with others formed into unlawful assembly restrained the movement of public caused public nuisance and also violated the restrictions imposed under the Tamil Nadu City Police Act and accelerated the spread of epidemic disease, hence the First Information Report initially registered against 28 persons in Crime No.360 of 2020 and after investigation charge sheet filed against the petitioner and four others for the offences under Sections 143,341,270,285,290 of IPC and Section 74 of Tamil Nadu City Police Act.
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2. The contention of the petitioner is that in the First Information Report the names of 28 persons have been mentioned. The complaint is that the petitioner and 27 others formed into unlawful assembly without any prior permission and had burnt the effigy of then Chief Minister and hence committed but the charge sheet has been filed against five persons. The primary case is that the petitioner along with others without any permission had conducted protest. The final report has been filed listing four witnesses who are all police personnels and no public have been examined and there is nothing to show that there was promulgation restricting assembly of people . Further no public had lodged a complaint but they were restricted moving in the direction they intended. There is no material collected in the scene of occurrence to show that there was burning of effigy. There was no public nuisance. Further there is no material to show that since the petitioner’s held dharna there is spike in spreading of Covid-19 Epidemic disease Hence taking uncontroverted complaint and statement of witnesses there is no prima facie case made against the petitioner. Further the petitioner in support of his contention he relied on the judgment of the Hon’ble Division Bench of this Court in the case of A.Santhosh Yadav.vs. The Bar Council of Tamil Nadu. Rep by its Secretary, having Office at NSC Bose Road Chennai- 104 and others 3/8 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.13188 of 2024 in W.P. NO.10560 of 2015,Wherein the Hon’ble Division Bench has held that burning effigy of the political party will not attract the offence under Section 285 of IPC, which is followed by this Court in the case of Murugaiahpandian.vs. The Inspector of Police, Seithur Rural Police Station, Seithur,Rajapalayam and others in Crl.O.P(MD) No.1342 of 2014, wherein this Court had followed the case of A.Santhos Yadav, Jeevananthan and other and that there is no unlawful assembly of showing protest in the democratic and there is no averment as to the date of passing promulgation by the police and promulgation order is in force . Thus is the absence of any such material no prosecution for holding protest in public can be termed a criminal offence. The High Court of Kerala in the case of Nidhish Kumar M.N.vs. The State of Kerala Rep. by Public Prosecutor High Court of Kerala, Eranakulam in Crl.MC.No. 4815 of 2021 had held that in the absence of there is spike of epidemic disease , in the absence of the accused being tested positive for covid-19 the offence under Section 269 of IPC would not attract. He also relied on the order passed by this Court in Crl.O.P(MD) No.18904 of 2022 in the case of Vivek@ Vivek Babu .vs. The Inspector of Police, Aravayal Police Station, Sivagangai District and others, wherein this Court had reiterated about the same issue and quashed the proceedings. 4/8 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.13188 of 2024
3. The learned Additional Public Prosecutor submitted that when respondent were on patrol duty on 05.12.2020 near MGR statute junction on Sattur -Viruthunagar road they found the petitioner along with 27 persons had formed in unlawful assembly who all belongs Vellalar Community raised slogans and burnt the effigy of Chief Minister . When they were asked to disburse they have failed to do and continued to hold protest affecting public movement of public and vehicle. Further it was corona period and the spread of covid-19 is very much rear, hence case has been registered. On registration of the First Information Report the police had investigated the case recorded the statement of witnesses and also filed final report against five persons listing. On the side of the prosecution statements of L.W.1 to LW.4 have been recorded. The contention of the petitioner can be decided during the trial and not in the quash application
4. It is seen that First Information Report has been registered in Crime No. 360 of 2020 not only against the petitioner but also against 27 persons but in the final report only five persons have been arrayed as accused why and for what reason the names of others 23 persons have 5/8 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.13188 of 2024 been deleted there is no reason given.. The prosecution cannot be on the pick and choose method. Further in this case, the prosecution proceeds that protest has taken place in the public road without any permission and there is nothing to show that on the date of agitation there was any promulgation was in force. There is no material to show that there was obstruction and annoyance received from any person. Further after protest there is nothing to show that there spike in the spread of Epidemic. The petitioner showing protest in democratic society is an accepted form which cannot be termed as criminal act. Further in this case no private witnesses have been examined.
5. Accordingly, this Criminal Original Petition is allowed and the proceedings in CC No. 542 of 2023 on the file of the Judicial Magistrate No.1 Virudhunagar, is quashed not only against this petitioner but also against all the other accused, who are also similarly placed. Consequently connected miscellaneous petitions stand closed.
10.12.2024
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
aav
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Crl.O.P.(MD)No.13188 of 2024
To
1. The Judicial Magistrate No.1 Virudhunagar.
2. The Inspector of Police Virudhunagar Bazaar Police Station Virudhunagar Virudhunagar District
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
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