Chandra Sekar v. The State Rep.By
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.04.2021
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR CRL.O.P.No.6632 of 2021 and Crl.M.P.Nos.4429 & 4430 of 2021 1.Chandra Sekar 2.Elangovan 3.Thangaraj 4.Charles 5.Jayaprakash 6.Senthil Kumaran 7.Prabhakaran 8.Raj 9.Balu 10.Salamen Sacheel 11.Samuvel 12.Magesh 13.Dhayalan 14.Neelamegam 15.Balan 16.Vadivel Raja 17.Murugesan 18.Veeramani 19.Sridhar 20.Chithiraivel 21.Annamalai 22.Aari 23.Murugan 24.Ameerjan 25.Alaxsandar 26.Bharathidhasan 27.Gajendran 28.Hemachalam 29.Madhan 30.Rangarajan 31.Gomahan 32.Murali 33.Vijay 34.Aruldass 35.Rajan 36.Francklin 37.Sowriammal 38.Kamachi 39.Chandra
40.Thamirabharani 41.Munusamy 42.Vinoth 43.Baskar 44.Senthil Kumar 45.Selvam 46.Dhawooth Bee 47.Vijaya 48.Bhula 49.Bharsona 50.Lakshmi 51.Karpagam 52.Kalaivani 53.Valarmathi 54.Shelena 55.Malathai 56.Queen Anitha 57.Indhara Rani 58.Ranuga 59.Mahalakshmi 60.Sabiya 61.Chandriga 62.Bashisha 63.Sumiya 64.Mahokari 65.Maghurunisha 66.Kalaiyarasi 67.Geetha 68.Pramila 69.Anjali ... Petitioners/Accused
Versus
1.The State Rep. by, The Inspector of Police, K-2, Ayanavaram Police Station, Chennai.
Crime No.560 of 2017.
...1st Respondent/Complainant 2.Chokkalingam Sub-Inspector of Police, K-2, Ayanavaram Police Station, Chennai.
...2nd Respondents/De-facto Complainant PRAYER: Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to call for the records and quash the proceedings in C.CNo.8274 of 2017, pending before the learned V Metropolitan Magistrate Court, Egmore at Chennai.
For Petitioners :
Mr.S.Sugendran For 1st Respondent :
Mr.M.Mohamed Riyaz, Additional Public Prosecutor *****
ORDER
The petitioners, who are facing trial before the learned V Metropolitan Magistrate, Egmore, Chennai in C.C.NO.8274 of 2017, for offence under Sections 143, 188 and 341 IPC, have filed the above Quash Petition.
2.On information, the 2nd respondent/defacto complainant the Sub-Inspector of Police, K-2 Ayanavaram Police Station, Chennai registered a case in Crime No.560 of 2017 on 13.03.2017 against the petitioners. On completion of investigation, charge sheet came to be filed against them, listing five witnesses as LW1 to LW5 and documents.
3.The gist of the case is that on 13.03.2017, at about 10.15 a.m., the 2nd respondent/LW1 along with the Police party was on duty, at that time, near Anderson Road Junction, Mylappa Street, Ayanavaram before the Fair Price Shop, A1 being a political functionary of a political party headed a group of 41 males and 28 females totally 69 persons and unlawfully assembled before the Fair Price Shop without any permission from the authorities concerned and raised slogans against the Government for not providing pulses and palm oil. When the 2nd respondent intervened and insisted them to disburse, the petitioner/protesters failed to do so. Hence, a complaint was lodged and on completion of investigation charges sheet came to be filed before the learned V Metropolitan Magistrate, Egmore, Chennai and the same was taken on file as C.C.No.
8274 of 2017. 4.The contention of the petitioners is that in this case, LW1 to LW5 are all public servants and no private person was examined and cited as witness during investigation. The case of the prosecution is that the petitioners assembled before the Fair Price Shop which is a public place and made protest for not providing ration articles. It is highly improbable that no public witness was present in the place of occurrence and no reason has been given for non examination of public witnesses. In this case, the FIR in Crime No.560 of 2017 was registered for offence under Section 188 IPC. As per Section 188 IPC, only the public servant is authorized to lodge a complaint and Section 195 Cr.P.C is clear embargo as to how a complaint to be registered and investigated by the Police for offence under Section 188 IPC.
public servant. Hence, the registration of the FIR its void ab initio and continuing the investigation for other offences is also not permitted.
5.The learned counsel for the petitioners submitted that this Court in catena of judgments have clearly held that the police personnel are not empowered to register an FIR under Section 188 IPC. There is nothing to show that on the date of occurrence, there was any prohibitory order in force and whether that order was communicated in the prescribed manner is also not known. The learned counsel further submitted that this Court in the cases of "Madhan Mohan Versus The State and another in Crl.O.P.Nos.23129 & 23127 of 2019" on the similar grounds, quashed the proceedings against the accused. Further, in the case of "Jeevanandham and others Vs. State Rep. by Inspector of Police and another reported in (2018) 2 LW Crl.
606", had given an authoritative pronouncement regarding the cases to be registered and investigated under Section 188 IPC and also issued certain guidelines, which is violated in this case 6.The learned counsel for the petitioners further submitted that the petitioners raised slogans and held demonstration against the Government for the ineffectiveness in distribution of ration articles, which cannot be construed as unlawful act. Right to Dissent is the Hallmark of Democracy, the petitioners only expressed their displeasure which is their fundamental right. Hence, he prayed for quashing of the proceedings against the petitioners.
7.The learned Additional Public Prosecutor appearing for the respondents submitted that in this case, a complaint was lodged by the 2nd respondent/the Sub Inspector of Police, K-2 Ayanavaram Police Station, Chennai/LW1. When he was on patrol duty along with LW2 to LW4 near Fair Price Shop, found the petitioners under the leadership of A1, had assembled and raised slogans against the Government and also caused disturbance to the public. Timely intervention of the respondents, further law and problem were averted.
The petitioners without getting permission from the authorities concerned have formed themselves into an unlawful assembly restrained the others and caused public disturbance. On completion of investigation, charge sheet has been filed in this case.
8.Considering the rival submissions and on perusal of the materials this Court finds that the petitioners have only raised their objection with regard to the shortage and non supply of ration articles to the general public. The purpose for having a ration shop is to make available the essential items for the needy persons, at affordable price. The pulses and the palm oil are the daily cooking needs of the general public and for the
shortage and non supply, they have shown their displeasure. Raising slogans against the Government itself would not amount to any commission of offence, which is a fundamental right under Constitution of India.
9.From the statement of the witnesses, it is seen that LW1 to LW5 present in the scene of occurrence and according to them, the petitioners raised slogans against the Government and with regard to shortage of non supply of ration articles, they did not do anything more. Admittedly in this case, the occurrence had taken place in the public place and view, no public or independent witness examined by the prosecution, which causes serious doubt on the veracity of the complaint. Further, 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 th same is barred under Section 195 Cr.P.C.
There is no material to show that there was any promulgation of any prohibitory order which was communicated to the public and there was any disobedience by the petitioners. Further, in consequence to the protest, the prosecution failed to show whether any trouble injuries occurred. Thus, the respondent Police did not follow the guidelines issued by this Court in Jeevanandham (Cited Supra). In several cases, this Court quashes the proceedings against the accused/protesters on the similar ground. 10.In the result, the proceedings in C.C.No.8274 of 2017, on the file of the V Metropolitan Magistrate Court, Egmore, Chennai is hereby quashed against the petitioners. This Criminal Original Petition is allowed accordingly. Consequently, the connected Criminal Miscellaneous Petitions are closed.
Sd/- Assistant Registrar(CS-VII) //True Copy// Sub Assistant Registrar vv2 To 1.The V Metropolitan Magistrate, Egmore, Chennai.
2.The Inspector of Police, K-2, Ayanavaram Police Station, Chennai.
3.The Public Prosecutor, High Court, Madras.
+1cc to Mr.S.Sugendran, Advocate, S.R.No.22570 CRL.O.P.No.6632 of 2021 GPL(CO) CB(01/06/2021)