Ayyappan and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 25TH DAY OF JULY 2016/3RD SRAVANA, 1938** **Crl.MC.No. 3400 of 2016 ()** **--------------------------CC 1251/2015 of JUDL. MAGISTRATE OF FIRST CLASS, KOTHAMANGALAM CRIME NO. 1394/2015 OF KOTHAMANGALAM POLICE STATION, ERNAKULAM DISTRICT -------** ## **PETITIONER(S):** **-------------** **1. AYYAPPAN, AGED 57 YEARS, S/O. VALLOLERI, THEKKETHODY HOUSE, VARAPETTY KARA, VARAPETTY VILLAGE, KOTHAMANGALAM.** **2. AMMINI, AGED 54 YEARS, W/O. AYYAPPAN, THEKKETHODY VEETTIL, KANDOTHOPADY BHAGAM, VARAPETTY KARA, VARAPETTY VILLAGE, KOTHAMANGALAM.** **3. SABU, AGED 39 YEARS, S/O. CHANDRAN, PUTHENPURAYIL HOUSE, ELAGAVOM KARA, VARAPETTY KARA, VARAPETTY VILLAGE.** **4. DAS, AGED 42 YEARS, S/O. CHANDRAN, PUTHENPURA HOUSE, ELAGHAVAM KARA, VARAPPETTY VILLAGE, KOTHAMANGALAM.** **5. AKHIL, AGED 26 YEARS, S/O. AYYAPPAN, PARIPPILKUDY HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY, KOTHAMANGALAM.** **6. BIJU MON AGED 41 YEARS, MATHAI, MANNEKUDY HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY, KOTHAMANGALAM.** **7. AJAYAN, AGED 49 YEARS, S/O. KUNJAN, THRUTHEL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY, KOTHAMANGALAM.** **8. ELDHOSE, AGED 39 YEARS, S/O. OUSEPH, MANNEKUDY HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, VARAPPETTY VILLAGE, KOTHAMANGALAM.** ## **Crl.MC.No. 3400 of 2016 ()** **9. THANKHAPPAN, AGED 46 YEARS,** - **S/O. KOCHUKUNJU,** - **PADINJARUPARAMBIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **10. MOHANAN, AGED 42 YEARS,** - **S/O. KUPPA, VALIYAMADATHIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **11. SAJI KUNJAPAN, AGED 35 YEARS, S/O. KUNJAPPAN, PLAVIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **12. RAJU, AGED 49 YEARS,** - **S/O. SHIVARAMAN, MALAYATTIKUDY KARA, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **13. RAJESH, AGED 38 YEARS,** - **S/O. KRISHNANKUTTY, THEKKETHODIYIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **14. GOPALAN, AGED 75 YEARS,** - **S/O. UNNIKRISHNAN, THEKKEKOMBANAAL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **15. GEORGE AGED 66 YEARS, S/O.MATHAI, CHENAYAMPILLIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **16. AJI, AGED 38 YEARS, S/O. KUNJAPPAN, PADINJAREPARAMBIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **17. MOLY, AGED 49 YEARS, W/O. PAULOSE, MANNEKUDY HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **18. SUHAAN, AGED 60 YEARS, W/O. ABRAHAM, MANNEKUDY HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** ## **Crl.MC.No. 3400 of 2016 ()** **19. AMMINI, AGED 65 YEARS,** - **S/O. CHANDRAN, PUTHENPURA HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **20. BAHVANI, AGED 63 YEARS,** - **S/O.CHELLAPPAN, PULPARAMBIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **21. SANTHA, AGED 52 YEARS,** - **W/O. THANKAPPAN, MALAYATTILKUDY HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **22. JISA PAUL, AGED 45 YEARS, W/O. PAUL, VELAMMAVUDY VEETTIL, VARAPETTY VILLAGE, VARAPETTY KARA, KOTHAMANGALAM.** **23. OMANA, AGED 44 YEARS, W/O. THANKAPPAN, PADINJAREMPARAMBIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **24. SUJA, AGED 30 YEARS,** - **W/O. BINEESH, VALLIMARIYIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **25. OMANA, AGED 39 YEARS,** - **W/O. DAS, PUTHENPURAYIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **26. JAYA, AGED 45 YEARS, W/O. GOPI, VALIYAMADATHIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **27. MINI, AGED 39 YEARS, W/O. SAJI, PARAYIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **28. SREEJA, AGED 34 YEARS , W/O. VINOD, PAYYAMKUDI HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** ## **Crl.MC.No. 3400 of 2016 ()** **29. SANTHA, AGED 45 YEARS,** **W/O. THANKAPPAN, EDAPPATTUMALYIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **BY ADVS.SRI.S.RENJITH** **SRI.S.UNNIKRISHNAN (NELLAD)** **RESPONDENTS :** **STATE OF KERALA** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## **Crl.MC.No. 3400 of 2016 ()** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEDURES** |**PETITIONER(S)' ANNEDURES**|**PETITIONER(S)' ANNEDURES**| |---|---| |**-----------------------**|| |**ANNEDURE A1:**|**CERTIFIED COPY OF THE FIR IN CRIME NO.**| ||**1394/2015 OF KOTHAMANGALAM POLICE STATION,**| ||**ERNAKULAM.**| |**ANNEDURE A2:**|**CERTIFIED COPY OF THE FINAL REPORT IN CRIME**| ||**NO. 1394/2015 OF KOTHAMANGALAM POLICE STATION.**| |**ANNEDURE A3:**|**COPY OF THE STOP MEMO ISSUED BY THE VARAPPETTY**| ||**GRAMA PANCHAYAT TO THE OSCAR PLYWOOD UNIT**| ||**DATED 08-04-2015.**| |**ANNEDURE A4:**|**COPY OF THE ORDER DATED 15-07-2015 IN WPC**| ||**NO. 21286 OF 2015.**| |**RESPONDENT(S)'**|**EXHIBITS**<br>**:**<br>**NIL.**| ||**//TRUE COPY//**| ||**P.S. TO JUDGE**| ## **bp** **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.3400 of 2016 ----------------------------------------Dated this the 25[th] day of July, 2016** ## **O R D E R** 1. Oscar Plywoods, an establishment engaged in the manufacture of plywood was functioning in the vicinity of the residential home of some of the petitioners. As the said factory was functioning without securing a D & O license from the local authority, and without securing consent from the pollution control board, notice was issued by the local authority, directing stoppage of the manufacturing process. Annexure-A4 order dated 15.7.2015 was also passed by this Court directing the local authority to ensure that the company does not function without a valid license. - 2.When the company authorities continued with the functioning, ignoring the orders issued, the petitioners herein convened an agitation in front of the factory on - 11.8.2015. Immediately thereafter, Annexure-A1 Crime Crl.M.C.3400/2016 2 was registered against the petitioners alleging offence punishable under sections 143, 147, 188, 431, and 283 read with 149 of the IPC. Later investigation was conducted and Annexure A2 final report was laid before the jurisdictional Court. - 3.In this petition filed under section 482 of the Code of the Criminal Procedure the petitioners seek to quash all further proceedings in the aforesaid case. - 4.The crux of the prosecution allegation is that on 11.8.2015 at 1.00 p.m., the petitioners had unlawfully assembled in front of the Oscar Plywood and thereafter obstructed two vehicles which were bringing raw materials to the factory and thereafter obstructed the vehicular traffic thus violating the orders of this Court. - 5.Heard the learned counsel appearing for the petitioners as well as the learned Public Prosecutor. 6. The learned counsel appearing for the petitioners submits that the initiation of proceedings against the petitioners 3 Crl.M.C.3400/2016 alleging commission of offence under section 188 of the IPC cannot be sustained as the taking of cognizance can only be on a complaint in writing by a public servant concerned or of some other public servant to whom he is administratively subordinate. - 7.Referring to various orders passed by the authorities restraining the illegal functioning of the factory it is submitted that the intention of the police was to stifle legitimate and legal protest by the local people whose right to life was being trampled by the illegal functioning of the factory. Learned counsel also relies on the judgment of this Court in **K.K.Poulose v State of Kerala** [2013 (4) KLT 687] to contend that the continuance of prosecution proceedings against the petitioners for the various offences is nothing but abuse of process of law. - 8.I have heard the learned public prosecutor as well. - 9.Annexure A1 is the FIR in the crime, which discloses that a protest was carried out in the road leading to the factory 4 Crl.M.C.3400/2016 and though directions were given by the police personnel not to obstruct traffic, the accused failed to heed to the same. 10.Section 283 will apply only in cases where any person, by omitting to take order with any property in his possession or under his charge, causes danger, obstruction or injury to any person in any public way or public line of navigation. In the case on hand it is the admitted case that the locals were expressing their right to protest by sitting on the road leading to the Company. There is no allegation that the peaceful protest had turned violent . - 11.In almost identical fact scenario, this Court in **K.K. Poulose** ( supra ) had occasion to observe as follows :- Para 3 …..…...................... ” _Leaving that aspect, the question to be examined is whether the assembly was unlawful. What could be an unlawful assembly is defined under Section 141 of the Indian Penal Code. One of the five_ Crl.M.C.3400/2016 5 _situations covered by that section has to be satisfied to hold that the assembly consisting of more than five persons was an unlawful assembly. Other than setting forth an allegation that a meeting was organised by a group of persons blocking traffic even in the final report filed, no whisper is made that it is so done to resist the execution of any law. True, it may be possible to infer that what was done was unlawful. But something more is required to prosecute a person as a member of an unlawful assembly. Then also the fact remains that the alleged blockage was in connection with some agitation led by a group of persons and is occurred years before. Those who were arrested, it is seen, are arrayed as accused when final report was filed. As rightly contended by learned counsel in a case of this nature even if prosecution steps are continued, in which more than 200 persons are arrayed as accused, after such lapse of time, it may not serve any purpose other than causing loss of precious time of the Court. I say so after looking into Annexure-III report which by itself does not satisfy the requirements necessary to establish ingredients of the offence under Section 283 of the_ Crl.M.C.3400/2016 6 _Indian Penal Code as well. When such be the case, continuation of the criminal proceedings against the accused, all of them, in the aforesaid case is not called for”._ 12. The ratio laid down in **Poulose** ( supra ) will squarely apply to the facts of the instant case. Though general allegation has been raised that a meeting was organized by a group of persons and they had blocked the traffic, there is no case that it was done to resist the execution of any law. None of the five situations covered by section 141 of the IPC is made out to hold that the assembly consisting of more than five persons was an unlawful assembly. After going through Annexures A1 and A2, it appears to me that the ingredients of the offence under Section 283 of I.P.C. is also not attracted in the facts and circumstances. In so far as Section 188 of the IPC is concerned, in view of the bar under Section 195 of the Code only the concerned public servant can make a complaint and initiate action in respect of offence under Crl.M.C.3400/2016 7 Section 188 of the IPC. 13.The Apex Court in **Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd.** (2000(3) SCC 269) has discussed at length about the scope and ambit while exercising power under Section 482 Cr.PC. It will be apposite to refer to the relevant portion of the judgment wherein it was held as follows : _"Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as the rarest of rare so as not to scuttle the prosecution. With the lodgment of first information report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on a perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge-sheet on the_ Crl.M.C.3400/2016 8 _face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount"._ 14.Having regard to the facts and circumstances, I am of the view that, this Court will be well justified in interfering at this stage and in quashing the proceedings. All further proceedings against the petitioners in C.C.No.1251 of 2015 on the files of the Judicial Magistrate of First Class Court-I, Kothamangalam will stand quashed. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps