K.K.S.S.R.Rmachandran v. The Sub Inspector Of Police

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 15.09.2022

CORAM

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN and Crl.M.P (MD) No.11045 of 2022

1. K.K.S.S.R.Ramachandran

2. Suburaj @ Subbaraj

3. A.R.R.Seenivasan

4. Dhanapal

5. Batsha Arumugam

6. R.Ramesh

7. Kothandaraman ... Petitioners Vs.

1. The State rep by The Sub Inspector of Police, Virudhunagar West Police Station, Virudhunagar District.

(Crime No.510 of 2020)

2. Catherin Mary ... Respondents 1/9

PRAYER: This Criminal Original Petition filed under Section 482 of Cr.P.C., to call for the records relating to the proceedings of First Information Report in Crime No.510 of 2020 pending on the file of the first respondent police and quash the same in respect of petitioner/accused No.1 to 4, 6, 7 & 10 herein. For Petitioners : Mr.S.Agilesh Kumar for Mr.G.Mariappan For Respondents : Mr.E.Raj Thilak Additional Public Prosecutor (for R1)

O R D E R

This Criminal Original petition has been filed to quash the case in Crime No.510 of 2020 on the file of the first respondent police as against the petitioners for the offences under Sections 143, 188 and 270 of I.P.C.

2. The allegation in the Final Report is that on 21.07.2020, the petitioners along with other accused persons conducted protest against Electricity Tariff and even after the warning of the respondent police, as they have not disbursed, they have been prosecuted for the aforesaid offences. 2/9

3. The learned counsel for the petitioners submitted that the prosecution has been launched with false allegations and even when the entire prosecution case taken as a face value, the same would not constitute any offence and continuing the prosecution is nothing but abuse of process of law. Therefore, submitted that the same may be quashed.

4. The Learned Additional Public Prosecutor submitted that the accused unlawfully assembled and caused disturbance to the public, thereby, they have been prosecuted.

5. It is to be noted that while exercising the power under Section 482 of Cr.P.C, the Court should be slow, at the same time, if the Court finds that from the entire materials collected by the prosecution taken as a whole, would not constitute any offence, in such situation, directing the parties to undergo ordeal of trial will be a futile exercise and it will infringe the right of the persons and in this regard, the Apex Court in State of Haryana and others Vs. Bhajan Lal and 3/9

Others reported in 1992 Supp (1) Supreme Court Cases 335, has been held as follows :

'........

(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a 4/9

specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.'

6. Similarly to attract the offence under Section 188 of IPC, there must be disobedience to order duly promulgated by the public servant. In this case there is no evidence available to show that the accused had assembled to resist or execution of any law and there is no whisper whatsoever available in the First Information Report or in the other materials to show that there were promulgation or there were any prohibitory order existed at the relevant point of time. In this regard it is relevant to refer to a judgment of this Court in Moogambigai S.Thirugnanasammantham and others Vs. State rep. by the Inspector of Police, Karur reported in 2021 0 Supreme [Mad] 555, wherein it has been held as follows:

'....

(9) When the allegations in the FIR and the materials collected by the prosecution does not disclose the commission of any offence and make out a case against the 5/9

accused and the prosecution itself is instituted with an ulterior motive for wreaking vengeance, this Court can exercise power under Section 482 Cr.P.C. with regard to quashing of the charge sheet for the offence under Section 188 IPC, this Court in Jeevanandam and others Vs. State rep. by the Inspector of Police reported in 2018-2-L.W.(Crl) 606 has relied a judgment in V.Gowthaman and others Vs. State rep. by its Inspector of Police, St.Thomas Mount Police Station, Chennai reported in '2018 (4) CTC 252' and held that the cognizance taken by the Magistrate under Section 188 IPC is not permissible and therefore, the prosecution of the accused under Section 188 IPC stands quashed.'

7. Even as per the FIR, it is not the case of the defacto complainant/ Head Constable that the petitioners along with other persons have unlawfully assembled and used force or violence and hence, offence under section 143 is not attracted. Similarly, there is no wanton malignant act by the petitioners with an intention to spread any infection or diseases i.e. dangerous to the life of any public. Hence, offence under section 270 of IPC is also not attracted.

8. Further, the police have no powers to initiate prosecution under section 188 of IPC. The offence under section 188 of IPC can be taken cognizance only 6/9

on the complaint in writing by a public servant and there is a clear bar under section 195 of Cr.P.C. for the Court to take cognizance of the offence. Under these circumstances, continuing the proceedings against the petitioners are futile exercise.

9. Considering the above, this Court is of the view that mere launching of FIR by the prosecution itself is not sufficient to reach to the conclusion that offences are made out and the materials collected by the prosecution do not support for proving the case and continuing the prosecution on shaky or without any materials is clear abuse of process of law.

10. Accordingly, this Criminal Original Petition is allowed and the case in Crime No.510 of 2020 on the file of the respondent police as against the petitioners is quashed. Consequently, connected miscellaneous petition is closed. 15.09.2022 Internet : Yes / No Index : Yes / No Speaking / Non Speaking order vsn 7/9

To

1. The Judicial Magistrate No.III, The Sub Inspector of Police, Virudhunagar West Police Station, Virudhunagar District.

2.The Public Prosecutor High Court, Madras.

8/9

N.SATHISH KUMAR,J.

vsn 15.09.2022 9/9