Vasanthakumar v. The Inspector Of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 15.12.2020

CORAM:

THE HONOURABLE MRS.JUSTICE J.NISHA BANU Crl.O.P(MD)No.13307 of 2020 and Crl.M.P(MD)No.6107 of 2020 1)Vasanthakumar 2)Ayyanar 3)Periyasamy ... Petitioners/Accused Nos. 1 to 3 vs.

1)The Inspector of Police, Sankarankoil Town Police Station, Tenkasi District.

(Crime No.100/2020) ...1st Respondent/Respondent 2)TR.Thangaraj ...2nd Respondent/Defacto Complainant PRAYER: Petition filed under Section 482 Code of Criminal Procedure, to call for records and quash the proceedings of the FIR in Crime No.100 of 2020 dated 04.03.2020 on the file of the Respondent. For Petitioners : Mr.K.Prabhu For R1 : Ms.S.E.Veronica Vincent Government Advocate

ORDER

This Criminal Original Petition has been filed to call for records and quash the proceedings of the FIR in Crime No.100 of 2020 dated 04.03.2020 on the file of the Respondent. 2.The allegation against the petitioners is that on 04.03.2020, during the celebration of Gurusamy Yadav Birthday function, the petitioners along with others came around 15 motorcycles and 3 cars and drove their vehicles rashly by making loud horn sound by causing nuisance to general public and when the police personnel who were on official duty giving protection for the above function, questioned the same, the petitioners verbally abused and threatened the police personnel. Therefore, the 2nd respondent who is the Inspector of Police made a complaint against the petitioners and based on the same, the petitioners were charged for the alleged offences under Sections 143, 283, 279, 353, 506(ii) and 189 IPC in Crime No.100 of 2020 on the file of the 1st respondent/Police.

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3.The learned counsel for the petitioners would state that the above issue in hand is covered by the order passed by this Court in CRL.OP(MD)No.3770 of 2012, dated 06.06.2018. 4.The learned Government Advocate (Crl.Side) would state that A1 has three previous cases and would fairly state there was no violence by the petitioners during the above function. 5.In the decision relied on by the counsel for the petitioner in CRL.OP(MD)No.3770 of 2012, dated 06.06.2018, this Court in similar circumstances, has held as follows:- 4.This Court is of the view that Section 188 of IPC can be invoked only if there has been a disobedience of a duly promulgated order by a public servant. The said provision reads as under :

"188.Disobedience to order duly promulgated by public servant - Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes to tender to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

5.It is not in dispute that during the relevant time no prohibitory order was in force. The petitioner had obtained permission to conduct the demonstration. Again, to make out an offence under Section 143 of IPC, it must be shown that the petitioner was a member of an unlawful assembly. What is unlawful assembly is defined in Section 141 of IPC. The said provision reads as under:

"141. Unlawful assembly - An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is2/4

First - 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 Second - To resist the execution of any law, or of any legal process; or Third - To commit any mischief or criminal trespass, or other offence; or Fourth - 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 Fifth - 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."

6.It is not the case of the prosecution that the petitioner exhibited criminal force or his object was to overawe by criminal force the Government officials. He did not resist the execution of any law or any legal process. He did not commit any criminal mischief or any criminal trespass or any other offence. No where it is shown in the final report that the object to the assembly of which the petitioner constituted a part would fall under Section 141 of IPC.

7.Therefore, this Court is of the view that the offences under Section 143 is clearly not made made out. That apart, as rightly contended by the learned counsel for the petitioner disobedience per se will not attracted Section 188 of IPC. It must be shown that on account of such disobedience on the part of the petitioner of a duly promulgated order by a public servant, something adverse happened. In this case, no such event is alleged to have happened. Therefore, this Court is of the view that Section 188 of IPC is also not made out.

8.This Court is clearly of the view that even if all the averments set out in the final report are taken as true, no case is made out against the petitioner. Therefore, the impugned proceedings in C.C.No.146 of 2011 on the file of the learned District Munsif cum Judicial Magistrate, Andipatti are quashed.

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6.In my considered opinion, the above decision is squarely applicable to the facts and circumstances of the present case. Therefore, the impugned FIR in Crime No.100 of 2020 dated 04.03.2020 on the file of the Respondent/Police is quashed and the Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar(CO) // True Copy // / /2021 Sub Assistant Registrar(CS) gns 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.The Inspector of Police, Sankarankoil Town Police Station, Tenkasi District.

2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

Crl.O.P(MD)No.13307 of 2020 15.12.2020 ck(CO) TR(08.01.2021) 4P 3C 4/4