Arumugam, v. The Inspector Of Police,

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.11.2017

CORAM

THE HONOURABLE MR. JUSTICE M.DHANDAPANI Crl.O.P.(MD)No.16689 of 2011 and M.P.(MD)Nos.1 and 2 of 2011 1.Arumugam 2.Sivaperumal 3.Murugan 4.Vijayakumar 5.Muthuraj 6.Muthukrishnan 7.Subramanian 8.Saravanan 9.Sri Krishnan 10.Patturaja 11.Sankar 12.Muthukrishnan S/o.Selvaraj 13.Chithiraivel 14.Tamilvalan, 15.Sundar 16.Jeyabalan 17.Pradeep 18.Kannikumar 19.Siva 20.Chinnadurai 21.Mandiram 22.Mahesh 23.Selvakumar 24.Muthukrishnan S/o.Arumugam 25.Vijayakumar 26.Sasikumar 27.Senthilkumar 28.Palavesamuthu 29.Elaiyaraja 30.Murugaperumal 31.Sudhakar 32.C.Raj 33.Thirumavalavan 34.Nanthan 35.G.Murugaperumal 36.Saravanamuthu 37.Muthuvalavan 38.Ramesh 39.Balaji 40.Murugan 41.Mohan 42.Esakkimuthu

43.Indiran 44.Ponlingam 45.Muniraj 46.K.Perumal 47.K.Kannan 48.Selvaganapathy 49.V.Sivanraj 50.Murugan S/o.Arunachalam 51.Muthuselvan 52.Premkumar 53.Muneeswaran 54.Chelladurai 55.Sri Balan 56.Rajalingam S/o.Perumal 57.Balan 58.Elango 59.Palpandy 60.Thol.N.Vijayakumar 61.Vellaidurai 62.Mohanraj 63.Sudalaimani 64.Satheesh 65.Rajalingam S/o.Vellaiyan 66.Jeyakumar 67.Periyasamy 68.P.Chinnadurai 69.M.Sarath 70.Anand 71.Packiaraj 72.Karnan Maharaja 73.Esakkimuthu 74.Anand S/o.Tamil Selvan 75.Aravind Raj 76.S.Murugan 77.Muthulingam 78.Indiraraj 79.Kalidoss 80.Arunkumar 81.Rajendran 82.Sivakumar 83.Selvam 84.Kathiravan 85.Rameshkumar 86.Aravind 87.K.Arulraj 88.Raghavan 89.Vellaiyan

90.Kannimuthu 91.Kaliraj 92.Pattani 93.Vijayan 94.Saravanan 95.Rasiya 96.Chinnadurai 97.Tamil Eniyan, 98.Udhayakumar 99.Chiruthai Siva 100.Mariyappan 101.Sivan Raja 102.Karuppasamy 103.Raja 104.Manikanda Nathan 105.Shanmugaraj 106.A.N.Ayudhavel 107.Tamil Selvan 108.Vellaiyan 109.Subbaiah 110.Ravisankar 111.Auto Kannan 112.Selvakumar 113.Ramarajan 114.Praburaj 115.Selvam 116.Selvakumar S/o.Palpandi 117.Pavulraj 118.M.Saranraj 119.S.Jeyamurugan 120.Muniyandi 121.Murugan S/o.Arumugam 122.Nayinar 123.Muniyasamy 124.Rajinikanth 125.Anbu 126.Arunkumar 127.Palraj 128.Selvakumar S/o.Madasamy 129.Kannan 130.Anand S/o.Sivanandam 131.Thangaraj 132.Amalraj 133.Vijayababu 134.Tamilmuthu Paraiyar 135.Raj Paraiyar 136.Vadivel

137.Kannimuthu 138.Lingam 139.S.Ganapathy 140.Sivanantha Perumal 141.Sivaperumal 142.Sankar S/o.Mayaperumal 143.Muthuraja 144.Vasantha 145.Ananda Nayagi 146.Panneer Selvi 147.P.Selvi 148.Eswari 149.Kannammal 150.Geetha 151.Perumal 152.Mutharu 153.Kanniga 154.Kanthari @ Kanthalakshmi 155.Pappa 156.S.Latha 157.Palkani 158.Pushpalatha 159.Ananda Jothi 160.Selvi 161.Ammal 162.Kovilmani 163.Roselin 164.S.Kala 165.Petchiammal 166.Prammu 167.Muthulakshmi 168.Valli 169.Sivananji 170.Fathima 171.Muthulakshmi 172.Pappa 173.Janaki 174.Pattu Muneeswari 175.Alagurani 176.Mooki 177.Sudanthira 178.Deivanayagi 179.Ponnuruvi 180.Meena 181.Annalakshmi 182.Vasantha 183.Sri Valli 184.Malathy 185.Rani 186.Valarmathi

187.Muniammal 188.Santhanapushpam 189.Jeyakani 190.Santhimuthu 191.Kodiyarasi 192.Panju 193.Mallika 194.Panjavarnam 195.Esakkiammal 196.Samudra Kani 197.Indira 198.Selvi 199.Valliyammal W/o.Rajendran 200.Rajakani 201.Valliyammal W/o.Senthilkumar 202.Kantha 203.Velkani 204.Muthulakshmi 205.Muthupechi 206.Muthukani 207.Saraswathi 208.Sappani Muthu 209.Muthupechi 210.Lingakani 211.Sasikala 212.Ananthi 213.Anthoniyammal 214.Chitra 215.Sorimuthu 216.Pechiammal 217.Sendu 218.Perumalpillai 219.Vadukachi 220.Sundar raj 221.Valli 222.Chairmankani 223.Rajeshwari 224.Valliyammal W/o.Jeyaraj 225.Pathrakali 226.Vasuki 227.Pechukani 228.Murugakani 229.Elamthi 230.P.Sumathi 231.Ananthi 232.Sivagami 233.Jeyadevi 234.Selvi

235.Madurakani 236.Muthuselvam 237.Petchithai 238.Kasthuri 239.Tamil Selvi 240.Narayana Vadiyu 241.Lakshmi 242.S.Indira 243.M.Bhavani 244.M.Deivakani 245.M.Gowri ... Petitioners / Accused Vs.

1. The State represented by, The Inspector of Police, Thiruchendur Police Station, Thiruchendur.

(In Crime No.41 of 2011) ... Respondent / Complainant PRAYER: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to call for the records pending on the file of the Judicial Magistrate, Thiruchendur in S.T.C.No.502 of 2011 and quash the same.

For Petitioners : Mr.Arul Vadivel @ Sekar For Respondent : Mr.C.Mayilvahana Rajendran Additional Public Prosecutor * * *

O R D E R

This petition has been filed under Section 482 Cr.P.C to quash the Proceedings in S.T.C.No.502 of 2011, in which the petitioners herein are the accused, pending on the file of the Judicial Magistrate, Thiruchendur.

2. Here the question involved in this case is whether the facts disclosed in the complaint or the final report will amount to constitute offence under Sections 147 and 188 of IPC, in the absence of a promulgation.

3.The brief facts of the petitioners' case that leading to file this Criminal Original Petition is as follows: On 12.02.2011 at about 12.00 noon, the petitioners unlawfully assembled before the Thiruchendur Main Arch and made a demonstration to arrest the members who had caused damages to Dr.Ambedkar digital board in Thiruchendur. Initially, the

respondent registered FIR against the petitioners stating that while the respondent was on patrol, he saw the petitioners, who have assembled unlawfully near Thiruchendur Main Arch and without any prior permission, they made demonstration and thereby caused hindrance to the public and traffic. In pursuance of the same, the respondent himself registered a case in Crim No.41 of 2011 under Sections 143, 331 and 188 I.P.C. The Law Enforcing Agency after completing the investigation, filed the final report before the Judicial Magistrate, Thiruchendur against persons/petitioners herein for the alleged offences under Sections 147, 143, 341 and 188 I.P.C. Thereafter, the said Court taken the final report on file in S.T.C.No.502 of 2011, implicating 245 persons/petitioners herein as accused.

4. The learned counsel appearing for the petitioners would submit that on the day, when the demonstration was made by the petitioners, there was no ban as referred to under Section 144 Cr.P.C and there is no promulgation by the respondent police. The learned counsel for the petitioner would further submit that since Dr.Ambedkar digital board was damaged by some people illegally, petitioners genuinely decided to make out demonstration in front of the Thiruchendur Main Arch to arrest the people who had caused damages to Dr.Ambedkar digital Board in Thiruchendur.

5. The learned counsel appearing for the petitioners would further submit that the First Information Report registered by the respondent does not contain any definite acquisition which amounts to abuse of process of law. When there is no offence said to have been committed by the petitioners, implicating them within the penal provision of Sections 147, 143, 341 and 188 IPC does not arise. In the absence of any evidence or document for implicating the petitioners in the criminal case, it is an abuse of process of law.

6.The learned Government Advocate (Criminal Side) appearing for the State would submit that the petitioners without any prior permission, unlawfully assembled in front of the Tiruchendur Main Arch and made a demonstration, demanding to arrest the people who had caused damages to Dr.Ambedkar digital board. Accordingly, the Law Enforcing Agency registered a case under Sections 147, 143, 341 and 188 IPC in Crime No.41 of 2011 and the challenge made against the complaint at the initial stage, is not maintainable. The inherent jurisdiction of this Court can be invoked, only if any manifest error or error apparent on the face of record. Accordingly, he prayed for dismissal of the Criminal Original Petition.

7. I have considered the rival submissions made by the learned counsel for the petitioners as well as the learned Government Advocate (Criminal Side) appearing for the respondent.

8.The admitted fact in dispute is that the petitioners unlawfully assembled before the Thiruchendur Main Arch and made a demonstration to arrest the members who had caused damages to Dr.Ambedkar digital board in Thiruchendur but the first respondent did not produced any material to show that on the particular day, promulgation was made to prevent the citizens to assemble in the city of Thiruchendur. In the absence of material, assembling of the persons in one place, cannot be said to be illegal. Hence, implicating the petitioner for offences under Sections 143, 147, 341 and 188 IPC does not arise, unless the Law Enforcing Agency establishes an order of promulgation was made. 9.The learned counsel appearing for the petitioner relied upon the judgment of this Court in Murugesan and others v. State of Tamil Nadu reported in 1989 Crl.L.J.1833, wherein at para 4 has been held as follows:

"4.Further, the materials on record also do not point out any violence or criminal force used by the petitioners on the relevant date and time. Therefore, mere presence of the petitioners in front of the Sri Mushnam Police Station without resorting to any violence or criminal force, would not constitute an offence under S.147 I.P.C."

10. On perusal of the above judgment, it is clear that when this Court comes to a conclusion that no case is made out against the accused/petitioner, the said benefit can also be extended to other persons, who were similarly placed like that of the petitioner herein. Accordingly, since no offence is made out as against the petitioner, the said benefit is also extended to all the accused in this case.

11. For quashing the Criminal compliant, I may usefully refer to a celebrated judgment of the Honourable Supreme Court in R.P.Kapur Vs. State of Punjab reported in AIR 1960 SC 866, wherein the Hon'ble Apex Court had summarised some of the categories of cases, where the inherent power under Section 482 of the Code could be exercised by the High Court to quash criminal proceedings against the accused.

These are: [AIR P.869, Para 6] (i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings e.g. want of sanction;

(ii) where the allegations in the first information report or the complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

12. Applying the principles laid down by the Hon'ble Apex Court in the abovesaid decision cited supra, more particularly, Clauses (ii) and (iii) of R.P. Kapur v. State of Punjab (cited supra), which are squarely applicable to the case on hand, I have no hesitation to quash the Criminal complaint. 13.Accordingly, the Criminal Original Petition is allowed and the case in S.T.C.No.502 of 2011, on the file of the Judicial Magistrate, Thiruchendur, is quashed. Consequently, the connected Miscellaneous Petitions are closed.

Sd/- Assistant Registrar(CS-II) /True Copy/ Sub Assistant Registrar To

1. The Judicial Magistrate, Thiruchendur.

2. The Inspector of Police, Thiruchendur Police Station, Thiruchendur.

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

+1cc to Mr.C.Arul Vadivel @ Sekar, Advocate Sr.No.87211 KMI/LS VB/KK/SAR2/22/01/2018/9P/5C Crl.O.P.(MD)No.16689 of 2011 14.11.2017