Faisal @ Faisal Ahamed v. Inspector Of Police
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.06.2023
CORAM
THE HONOURABLE MR. JUSTICE G.CHANDRASEKHARAN and Crl.M.P.No.7495 of 2023 Faisal @ Faisal Ahamed ... Petitioner Vs.
1.The Inspector of Police, Mangalam Police Station, Tiruppur District.
(Crime No.313 of 2022) 2.T.Pannari ... Respondents PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C., to call for the records of the Crime No.313 of 2022 on the file of the 1st respondent police pending investigation and quash the same. For Petitioner : Mr.Thiyagarajan.B For R-1 : Mr.Leonard Arul Joseph Selvam Government Advocate (Crl. Side)
ORDER
This Criminal Original Petition has been filed to call for the records of the Crime No.313 of 2022 on the file of the 1st respondent police pending investigation and quash the same.
2. The learned counsel for the petitioners submitted that First Information Report is registered for the offences under Sections 143 and 341 IPC in Crime No.313 of 2022, alleging that the accused with other persons had unlawfully assembled and raised slogans against the Government at about 11.30 am on 22.09.2022 at Mangalam Junction. He further submitted that accused have not committed any offence and registration of First Information Report by the respondent police is illegal.
3. He further submitted that this court in Crl.O.P.No.17903 of 2021 and Crl.O.P.No.11291 of 2022 quashed the cases registered under Section 143 and 341 of IPC and 143, 188 and 341 of IPC respectively on the ground that the petitioners therein were engaged in protest, which is their fundamental right. No public lodged complaint and no public got affected, due to the protest conducted
by the petitioners. Petitioners had only raised slogans against the Government and the same would not amount to commission of offence and it is a fundamental right under the constitution of India.
4. The learned counsel for the petitioners relied upon a Judgment in Mahaboob Basha Vs. Sambanda Reddiar and others reported in 1994(1) Crimes, Page 477. He also relied upon a judgment in a batch of quash petitions, reported in 2018-2-L.W. (Crl.) 606 in Crl.O.P. (MD).No. 1356 of 2018, dated 20.09.2018 in the case of Jeevanandham and others Vs. State rep. by the Inspector of Police, Karur District, and this Court held in Paragraph-25, as follows :- "25.In view of the discussions, the following guidelines are issued insofar as an offence under Section 188 of IPC, is concerned:
a) A Police Officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC. b) A Police Officer by virtue of the powers conferred under Section 41 of Cr.P.C will have the authority to take action under Section 41 of Cr.P.C., when a cognizable offence under Section 188 IPC is committed in his presence or where such action is required, to prevent such person from committing an offence under Section
188 of IPC.
c) The role of the Police Officer will be confined only to the preventive action as stipulated under Section 41 of Cr.P.C and immediately thereafter, he has to inform about the same to the public servant concerned/authorised, to enable such public servant to give a complaint in writing before the jurisdictional Magistrate, who shall take cognizance of such complaint on being prima facie satisfied with the requirements of Section 188 of IPC.
d) In order to attract the provisions of Section 188 of IPC, the written complaint of the public servant concerned should reflect the following ingredients namely;
i) that there must be an order promulgated by the public servant;
ii) that such public servant is lawfully empowered to promulgate it;
iii) that the person with knowledge of such order and being directed by such order to abstain from doing certain act or to take certain order with certain property in his possession and under his management, has disobeyed;
and
iv)that such disobedience causes or tends to cause; (a) obstruction,annoyance or risk of it to any person lawfully employed; or (b) danger to human life, health or safety; or (c) a riot or affray.
e) The promulgation issued under Section 30(2) of the Police Act, 1861, must satisfy the test of reasonableness and can only be in the nature of a regulatory power and not a blanket power to trifle any democratic dissent of the citizens by the Police. f) The promulgation through which, the order is made known must be by something done openly and in public and private information will not be a promulgation. The order must be notified or published by beat of drum or in a Gazette or published in a newspaper with a wide circulation.
g) No Judicial Magistrate should take cognizance of a Final Report when it reflects an offence under Section 172 to 188 of IPC. An FIR or a Final Report will not become void ab initio insofar as offences other than Section 172 to 188 of IPC and a Final Report can be taken cognizance by the Magistrate insofar as offences not covered under Section 195(1)(a)(i) of Cr.P.C. h) The Director General of Police, Chennai and Inspector General of the various Zones are directed to
immediately formulate a process by specifically empowering public servants dealing with for an offence under Section 188 of IPC to ensure that there is no delay in filing a written complaint by the public servants concerned under Section 195(1)(a)(i) of Cr.P.C.
5. In response the learned Government Advocate (Crl.Side) submitted that the petitioners had unlawfully assembled and raised slogans against the Government. Therefore, First Information Report in Crime No.313 of 2022 was registered. Thus, he prayed for dismissal of this petition.
6. Considered the submissions and perused the records.
7. This Court in Crl.O.P.No.23022 of 2022 while dealing with quashing of case registered under Section 143 & 341 IPC observed that if the unlawful assembly confirms to the definition of unlawful assembly as defined under Section 141 IPC, the member of unlawful assembly can be prosecuted under Section 143 IPC. It is also relevant to note the definition of Unlawful Assembly: "Unlawful AssemblyAn assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is - (i) 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 (ii) to resist the execution of any law, or of any legal process; or (iii) to commit any mischief or criminal trespass, or other offence; or (iv) 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 (v) 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.-
8. Section 143 of IPC reads as follows:
"143. Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six month, or with fine, or with both."
In the case before hand, there is no specific allegations against the petitioners or any of the member of the unlawful assembly that they used criminal force with a common object of overawe the Central or State Government, resisted the execution of any law or of any process, committed any mischief or criminal trespass, take possession of any property, deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right, compelled any person to do what he is not legally bound to do or to omit to do what he is legally entitled to do. In the absence of specific allegations in this regard, it is no doubt that the alleged assembly cannot be considered as unlawful assembly and the members of alleged unlawful assembly cannot be prosecuted for the offence under Section 143 IPC.
Similarly, there is no statement obtained from any member, individual or vehicle driver as to whether they were prevented or criminally resisted from proceeding further. Therefore, this Court is of the considered view that the ingredients for prosecuting the petitioner under Section 143 and 341 IPC are not made out and the continuation of trial would be a harassment to the petitioners.
9. Therefore, the proceedings pending on the file of the 1st respondent in Crime No.313 of 2022 against the petitioners is quashed.
10. Accordingly, this Criminal Original Petition is allowed. Consequently, the connected Miscellaneous Petition is closed. 08.06.2023 Index:Yes/No Speaking/Non speaking order gd To 1.The Inspector of Police, Mangalam Police Station, Tiruppur District.
2. The Public Prosecutor, High Court of Madras.
G.CHANDRASEKHARAN.J., gd 08.06.2023