Madras High Court
Ariharan Kencian vs The State Rep. By Its on 13 August, 2021
Author: G.Ilangovan
Bench: G.Ilangovan
Crl.O.P.(MD)Nos.12357, 12400, 12402, 12403 and 12405 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 15.07.2021
Pronounced on : 13.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.ILANGOVAN
Crl.O.P.(MD)Nos. 12357, 12400, 12402, 12403 and 12405 of 2020
and Crl.M.P(MD)Nos.5566,5567,5576, 5577,5579, 5580, 5581, 5582,
5585 and 5587 of 2020
Crl.O.P(MD)No.12357 of 2020:
Ariharan Kencian ... Petitioner/A2
Vs.
The State rep. by its
Inspector of Police,
Kudankulam Police Station,
Tirunelveli District -627 104
(Crime No.330 of 2012) .. Respondent/Investigating Officer
PRAYER : Criminal Original Petition is filed under Section 482 of
Cr.P.C, to call for the entire records pertaining to Crime No.330 of 2012
in P.R.C.No.30 of 2020 on the file of the Judicial Magistrate,
Radhapuram and quash the same in so far as the petitioner is concerned.
In all cases:
For Petitioner : Mr.G.Rajagopalan
Senior Counsel
for Mr.L.P.Maurya
For Respondent : Mr.R.M.Anbunidhi
Additional Public Prosecutor
https://www.mhc.tn.gov.in/judis/
1
Crl.O.P.(MD)Nos.12357, 12400, 12402, 12403 and 12405 of 2020
COMMON ORDER
This batch of cases arise out a common protest namely, the protest against the establishment of Kudankulam Nuclear Power Plant in Kudankulam police limit.
2. After formation of Radhapuram Judicial Magistrate Court, all the cases related to Koodangulam protest were transferred to the file of the District Munsif cum Judicial Magistrate, Radhapuram.
3. The learned Senior Counsel for the petitioner in all the cases straight away took this Court to the judgment of the Hon'ble Supreme Court in G.Sundarrajan Vs. Union of India reported in 2013(6) SCC wherein the whole incident as well as establishment of Koodangulam Nuclear Power Plant Project has been discussed. It is a classic case of recent times, which deal and discuss about the necessity of establishing such power plants in the interest of the development of the country and scientific explorations. A detailed study has been made in this case and during the course of the judgment, the Hon'ble Supreme Court is of the view that all the cases that have been registered against the protestors touching the protest against the establishment of the power plant may be https://www.mhc.tn.gov.in/judis/ 2 Crl.O.P.(MD)Nos.12357, 12400, 12402, 12403 and 12405 of 2020 dropped. Para No.244.14 of the judgments reads as under:
244.14 Endeavour should be made to withdraw all the criminal cases filed against the agitators so that peace and normalcy be restored at Kudankulam and nearby places and steps should be taken to educate the people of the necessity of the plant which is in the largest interest of the nation particularly the State of Tamil Nadu.
4. The case was decided in 2013 but thereafter also it appears that the problem which was created because of the running of the power plant did not abate and no effort has also been made by the State Government to withdraw the cases. The Judgment of the Hon'ble Supreme Court and its direction is binding upon all the persons under Articles 141 and 142 of Constitution of India. In this backdrop, we will discuss about the other matters which are in issue.
5. A number of cases also been filed before this Court seeking quashment of all the cases. More particularly, in Crl.O.P(MD)No.2064, 2068, 2070, 2072, 2073, 2071 of 2020 dated 13.03.2020 the same issue came up for consideration and in that cases, the protest took place on 06.09.2012 was under discussion. During the course of the discussion, https://www.mhc.tn.gov.in/judis/ 3 Crl.O.P.(MD)Nos.12357, 12400, 12402, 12403 and 12405 of 2020 this Court also observed that cases have been registered against the breach of prohibitory orders but because of the protest there is no evidence on record to show that adverse consequences ensued. So the observations which are made in theses batch of matters assumes importance to the effect that in case of violation of the prohibitory orders, some consequence of illegal nature or illegality must have ensued. This is a hallmark of deciding the issue.
6. Moreover, now it has been more or less well established that since the offence under Section 188 IPC is non-cognizable offence and the police has no right to register the case and take up investigation and file final report in the absence of any orders from the concerned jurisdictional Magistrate. More over, it is also more or less now fully established and recognized that right to protest expressing the grievance over a particular issue is well recognized. The only clarification is that it should not end in any illegal activity or crime. This is another hallmark which got to be taken into account while dealing with the cases. As observed by the Hon'ble Supreme Court in the above said judgment, there was wide spread misconception with regard to the consequences that may ensue because of the power plant. More particularly, after the infamous incidents that took place in various parts of the world. So https://www.mhc.tn.gov.in/judis/ 4 Crl.O.P.(MD)Nos.12357, 12400, 12402, 12403 and 12405 of 2020 naturally some sort of misconception with regard to the consequences of this power plant which may end in threat to life was under the mind of the general public more particularly the residents of the particular village where the power plant was established. That is why the Hon'ble Supreme Court has given a direction to the effect that the steps must be taken by the concerned authorities and by the Government also. But took note about the necessity of the plant keeping in mind, interest of the nation particularly, the State of TamilNadu. This direction speaks volumes of interest as well as care and concern that has been taken note of by the Hon'ble Supreme Court about the health and safety of the residents. As mentioned earlier, the case was decided in 2013 and it appears that no effort has been made in this direction by the authorities. The protest was spontaneous in nature. It also appears that it is not a organized one. Spontaneous crowding, slogan raising and outburst in the absence of any violation or any criminal act must not be visited with criminal liability. In this background in mind, we proceed to discuss the cases individually.
7. Crl.O.P(MD)No.12357 of 2020 arise out of a protest took place on06.09.2012. Crl.O.P(MD)No.12400 of 2020 arise out of a protest took place on 10.12.2012.Crl.O.P(MD)No.12402 of 2020 arise out of a protest that took place on 24.12.2012. Crl.O.P(MD)No.12403 of 2020 arise out https://www.mhc.tn.gov.in/judis/ 5 Crl.O.P.(MD)Nos.12357, 12400, 12402, 12403 and 12405 of 2020 of a protest took place on 11.03.2013. Crl.O.P(MD)No.12405 of 2020 is in respect of the same protest which took place on 03.04.2014.
8.i) In Crl.O.P(MD)No.12357 of 2020, the allegation in the final report is on 06.09.2012 at about 1.00 a.m when the police team was engaged in regulating traffic, the accused persons staged a protest and using the weapons, they damaged the barricade and plastic barrels put up in that area and later, they fled away from the place of occurrence.
8.ii)A reading of the final report shows that the alleged occurrence took place during the early hours namely at about 1.00 a.m. It is mentioned in the final report that with the help of torch light, the protestors were identified. But the alleged damaged articles have not been recovered or seized. No specific overt act has been mentioned against the petitioner. So the involvement of the petitioner in the alleged occurrence is doubtful since it is stated that the protest and consequential damage to the barricade and plastic barrels took place during the early hours of night.
9.i) In Crl.O.P(MD)No.12400 of 2020, the case of the prosecution is that on 10.12.2012, the protestors staged a protest by laying siege through sea by the boats and thereby committed the abovesaid offences. https://www.mhc.tn.gov.in/judis/ 6 Crl.O.P.(MD)Nos.12357, 12400, 12402, 12403 and 12405 of 2020 Based upon the complaint given by the Inspector of Police, Koodangulam, the case in Crime No.404 of 2012 has been registered and after completion of investigation, final report has been filed before the District Munsif cum Judicial Magistrate, Radhapuram, for the offences punishable under Sections 143, 147, 148, 149, 291, 294(b), 353, 447, 500, 506(ii) IPC, Section 2(13-d) of the Official Secrets Act, 1923 and Section 5 of Tamil Nadu Marie Fishing Regulation Act r/w 120(b) IPC.
9.ii) In the counter, it is stated that on 10.12.2012 at about 9.30 a.m the accused persons ventured in the sea behind the Nuclear Power Plant by carrying deadly weapons and went into the restricted portion in the sea and raised slogans against the formation of the Nuclear Power Plant. Totally, there are 20 witnesses and all the witnesses during the course of statement under Section 161(3) Cr.P.C, have stated the active participation of the petitioner in the occurrence.
9.iii) Further, in the counter it is stated that The petitioner is involved in cases in Crime Nos.222 of 2013, 369 of 2012, 332 of 2012 and 300 of 2012, 228 of 2012, 206 of 2012 and 136 of 2012.
9.iv) In Crl.O.P(MD)NO.12400 of 2020, as mentioned earlier, the case of the petitioner is that he was not available in the place of occurrence at the time of occurrence. As pointed out by the learned Additional Public Prosecutor, it cannot be considered at this stage and https://www.mhc.tn.gov.in/judis/ 7 Crl.O.P.(MD)Nos.12357, 12400, 12402, 12403 and 12405 of 2020 alibi cannot be taken unless the same is proved. The offences alleged in this case are Sections 143, 147, 148, 149, 291, 294(b), 353, 447, 500, 506(ii) IPC, Section 2(13-d) of the Official Secrets Act, 1923 and Section 5 of Tamil Nadu Marie Fishing Regulation Act r/w 120(b) IPC.
9.v) A reading of the counter shows that no specific overt act has been attributed against the petitioner. It appears that more than 700 people involved in the protest and how the individual persons have been identified by the prosecution is not understandable. Even though in the counter, it has been stated that there are some injured persons, no such allegation has been made and no offence with regard to assault is mentioned. A general allegation has been made against all the persons. It has been stated that in 150 country boats the accused person started moving towards the plant and raised the slogans and also abused the Government officials in filthy language and they also criminally intimidated the officials. These are the allegations which are mentioned in the final report. As mentioned earlier, these allegations are only omnibus in nature and mere raising of slogans will not amount to a offence. More over specific abuse or insult that has been spoken or uttered by the protestors is also not mentioned. Similarly, there is no submission to the effect that the protestors are about to cause injury to the Government officials and mere utterances during the protest will not https://www.mhc.tn.gov.in/judis/ 8 Crl.O.P.(MD)Nos.12357, 12400, 12402, 12403 and 12405 of 2020 amount to criminal intimidation. The occurrence is of the year 2012 and 9 years lapsed and in the light of the judgment of the Hon'ble Supreme Court no purpose will be served in keeping all these matters pending.
10.i) In Crl.O.P(MD)No.12402 of 2020, the case of the prosecution is that on 24.12.2012, the petitioner along with other person assembled at 1.00 p.m near St.Lourdhu Madha Church, Idinthakarai and shouted slogans against Koodangulam Power Plant when prohibitory order under Section 144 Crl.P.C was in force and also burned the effigy of the President Viladiyir Pudin and also raised the slogans against him and from there they started a procession and reached another place namely Arch in Indinthakarai and they also burned the flags. Based upon the complaint given by the Inspector of Police, Koodangulam, the case in Crime No.405 of 2012 for the offences under Sections 147, 148, 123(e), 153(A), 291 IPC altered into Sections 147, 188, 153(A) 291 IPC was filed. After completion of investigation, charge sheet has been filed before the concerned court namely, the Judicial Magistrate, Radhapuram it was taken on file in C.CNo.94 of 2016.
10.ii) In the Counter in Crl.O.P(MD)No.12402 of 2021, it is stated that the petitioner was also involved in Crime Nos.222 of 2013, 369 of 2012, 332 of 2012 and 300 of 2012, 228 of 2012, 206 of 2012 and 136 of https://www.mhc.tn.gov.in/judis/ 9 Crl.O.P.(MD)Nos.12357, 12400, 12402, 12403 and 12405 of 2020 2012. and whether he was available in the place of occurrence or not cannot be a matter for discussion in this matter. After completion of investigation, final report is also filed and all the witnesses have been examined. During the course of investigation they have stated about the involvement of the petitioner.
11.i) In Crl.O.P(MD)No.12403 of 2020, the petitioner is facing charges for the offences under Sections 143, 147, 148, 188, 291, 294(b), 353,447, 500, 506(ii)IPC and Section 4 of Tamil Nadu Marine Fishing Regulation Act r/w Section 120(b) of IPC.
11.ii) The case of the prosecution is that on 11.03.2013, the agitators staged the protest by laying siege through see in boats. Based upon the complaint given by the Inspector of Police, Koodangulam, case has been registered. After completion of investigation, final report was filed before the Judicial Magistrate, Radhapuram and also taken on file in C.C.No.368 of 2014.
11.iii) In the counter, it is stated that the petitioner along with other persons on 11.03.2021 at about 10.a.m barged into the sea in 300 country made boats and attempted to block the Nuclear Power Plant. Based upon the complaint, case has been registered. The petitioner is also involved in cases in Crime Nos.222 of 2013, 369 of 2012, 332 of 2012, 300 of 2012, https://www.mhc.tn.gov.in/judis/ 10 Crl.O.P.(MD)Nos.12357, 12400, 12402, 12403 and 12405 of 2020 228 of 2012, 206 of 2012 and 136 of 2012.It is also stated in the counter that whether the petitioner was in the place of occurrence or not is not matter for discussion.
12.i) In Crl.O.P(MD)No.12405 of 2021, the petitioner is arrayed as the accused No.10 in C.C.No.369 of 2014 on the file of the District Munsif cum Judicial Maigstrate, Radhapuram. The case of the prosecution on 03.04.2010 around 9.00 a.m. a number of protestors assembled near the shore of the township where the scientists and employees of Koodangulam Power Plant were residing and shouted the slogans against the Nuclear Power Plant violating the prohibitory orders. Based upon the complaint given by the Inspector of Police, case has been registered in Crime NO.98 of 2013 against the petitioner along with other persons. After completing investigation, final report was filed before the Judicial Magistrate, Radhapuram which was taken on file in C.C.No.369 of 2014 for the offences punishable under Sections 143, 147, 148, 149, 188, 294(b), 353, 500, 506(ii) IPC.
12.ii) Based upon the complaint given by the Village Administrative Officer, Chettikulam Village the above said case has been registered and during the course of investigation, 27 witnesses have been examined and they clearly gave a statement about the involvement of the https://www.mhc.tn.gov.in/judis/ 11 Crl.O.P.(MD)Nos.12357, 12400, 12402, 12403 and 12405 of 2020 petitioner in this occurrence. The petitioner is also involved in Crime Nos.222 of 2013, 369 of 2012, 332 of 2012, 300 of 2012, 228 of 2012, 206 of 2012 and 136 of 2012.
13. In Crl.O.P(MD)No.12357 of 2020, the case of the prosecution is that the accused persons were identified with the help of torch light is only unbelievable one. So also the criminal intimidation offences. How the persons were identified at the darkness in the night is not known. So even though the involvement of the petitioner on the ground that he was not in the place of occurrence and away in Chennai and attending his duty cannot be considered at this stage, the allegation appears to be highly improbable. Based upon the final report and statement of witnesses, I am of the considered view the petitioner cannot be proceeded without proper materials. So on the ground P.R.C.No.30 of 2020 is liable to be quashed and accordingly, the same is quashed.
14. In Crl.O.P(MD)No.12400 of 2020, considering the allegations that have been made against the petitioner and others, the case in C.C. 366 of 2014 is liable to be quashed. Even though this petition is filed by the petitioner, it will generally apply to all the accused persons. But they have not approached this Court and the trial of the stage is not known. https://www.mhc.tn.gov.in/judis/ 12 Crl.O.P.(MD)Nos.12357, 12400, 12402, 12403 and 12405 of 2020 Hence, C.C.NO.366 of 2014 is liable to be quased and the same is quashed insofar as the petitioner is concerned.
15. Crl.O.P(MD)No.12402 of 2020 is filed with reference to the protest that took place on 24.12.2012. In the final report it has been stated that at about 1.00 p.m on the abovesaid date the protest near Idinthakarai near St.Louis Madha Church violating the prohibitory order they burned the effigy of the President Viladiyir Pudin and they also burned the flags and no specific overt act has been attributed against this petitioner in the final report. More over, mere raising of slogans will not amount to offence under Section 153(A) IPC. In the facts and circumstances, Section 291 IPC is not attracted in the absence of allegations against this petitioner. Mere general allegations will not attract the ingredients of the offences mentioned in the final report. Hence, the case in C.C.No.94 of 2020 is liable to be quashed and accordingly, the same is quashed.
16. Crl.O.P(MD)No.12403 of 2020 is filed with reference to the incident that took place on 11.03.2012 at about 10 a.m. The allegation is that he along with the other accused persons raised the slogans and shouting against the Government and also attempted to enter into the https://www.mhc.tn.gov.in/judis/ 13 Crl.O.P.(MD)Nos.12357, 12400, 12402, 12403 and 12405 of 2020 prohibitory area in the sea shore and abused the Government officials in filthy language and criminally intimidated them. As pointed out by the learned Additional Public Prosecutor, it cannot be considered at this stage and alibi cannot be taken. All the considerations discussed above for the incident dated 10.12.2012 equally applies to this incident also. Hence,C.C.No.368 of 2014 is liable to be quashed and the same is quashed.
17. Crl.OP.(MD)No.12405 of 2020 is with reference to the incident that took place on 03.04.2013 at about 9.00 a.m. In the final report it is mentioned that about 950 people in 200 country boats they approached the residential area of scientists with deadly weapons and staged a protest and they also indulged inciting violence between two groups and they also abused the officials in filthy language and criminally intimidated them. As stated above, involvement of this petitioner is doubtful and equally apply to this case. No specific overt act is attributed against this petitioner and how the Investigating Officer is able to identify these people among 950 people is also not clear. As mentioned in the above cases, ingredients of offences under Section 506(ii), 500, 353, 294(b) are not attracted. More over it is seen that in all the cases only a peaceful protest has been and no one sustained injury https://www.mhc.tn.gov.in/judis/ 14 Crl.O.P.(MD)Nos.12357, 12400, 12402, 12403 and 12405 of 2020 and it did not turn violent also. The case against this petition in C.C.No. 369 of 2014 is liable to be quashed and the same is quashed.
18. In fine, these petitions are allowed. Consequently, connected miscellaneous petitions are closed.
13.08.2021 Index : Yes/No Internet : Yes/No CM 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. To
1.Inspector of Police, Kudankulam Police Station, Tirunelveli District -627 104.
2. The Judicial Magistrate, Radhapuram.
3.The District Munsif cum Judicial Magistrate, Radhapuram.
4.The Additional Public Prosecutor, https://www.mhc.tn.gov.in/judis/ 15 Crl.O.P.(MD)Nos.12357, 12400, 12402, 12403 and 12405 of 2020 Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis/ 16 Crl.O.P.(MD)Nos.12357, 12400, 12402, 12403 and 12405 of 2020 G.ILANGOVAN. J.
CM Crl.O.P.(MD)Nos. 12357, 12400, 12402, 12403 and 12405 of 2020 and Crl.M.P(MD)Nos.5566,5567,5576, 5577,5579, 5580, 5581, 5582, 5585 and 5587 of 2020 .08.2021 https://www.mhc.tn.gov.in/judis/ 17