Basheer and Others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 7TH DAY OF JULY 2016/16TH ASHADHA, 1938** **Crl.MC.No. 3589 of 2016** **------------------------** **CC 678/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ALUVA CRIME NO. 475/2013 OF ALUVA EAST POLICE STATION, ERNAKULAM** **....** **PETITIONER(S):** **-------------** ## **1. BASHEER,** **AGED 41 YEARS, S/O. SYED, KARIPAYI HOUSE, KEEZHMAD, ALUVA EAST,** ## **2. SATHAR,** **AGED 33 YEARS, S/O. HAMEED, MANIYAMPARA HOUSE, KEEZHMAD, VAZHAKKULAM , ALUVA.** ## **3. ASLAM,** **AGED 31 YEARS, S/O. ABDUL KHADER, MAMUTTIL HOUSE, KEEZHMAD, VAZHAKKULAM,ALUVA,** ## **4. NAZEER,** **AGED 38 YEARS, S/O. MUHAMMED, KIZHAKKEVEETTIL, KEEZHMAD, ALUVA EAST,** **5. SALIM, AGED 41 YEARS, S/O. MUHAMMED, NEERIYELIL, KEEZHMAD, ALUVA EAST.** **6. MOIDEEN, AGED 48 YEARS,** **S/O. PAREEKUTTY, KONALKULAM, EDATHALA, ALUVA EAST.** **7. ALIKUNJU, AGED 44 YERARS,** **S/O. ABDUL KHADER, MANIYAMPARA, HOUSE, EDATHALA, VAZHAKKULAM, ALUVA.** **8. MOIDEENKUNJU, AGED 46 YEARS, S/O. ALIYAR, MANIYAMPARA HOUSE, EDATHALA, VAZHAKULAM, ALUVA.** **9. SHAMEER, AGED 38 YEARS, S/O. ABDUL KHADER, NEERIYELIL, KEEZHMAD, NALAM MILE, ALUVA.** **msv/** **-2-** **-2-** ## **Crl.MC.No. 3589 of 2016** ## **------------------------** **10. KUMARAN, AGED 44 YEARS, S/O. KAVALAN, KANNAMKUZHI HOUSE, KEEZHMAD, ALUVA EAST.** **11. JOFY JOSE, AGED 34 YEARS, S/O. JOSE, CHAKKALACKAL HOUSE, KEEZHMAD, ALUVA EAST.** **12. SHIBU, AGED 37 YEARS, S/O. ANTONY, PUTHUSSERI HOUSE, ERUMATHALA, ALUVA EAST.** **13. MANOJ, AGED 33 YEARS,** - **S/O. SUPRAN, PUVATHINGAL HOUSE, ERUMATHALA., ALUVA,.** **14. NAJIBUDHEEN, AGED 37 YEARS,** - **S/O. BEERAN, THEVARMOLATH HOUSE, KEEZHMAD, ALUVA EAST.** **15. RAFEEQ, AGED 37 YEARS, S/O. SAITHALI, KARIPAI HOUSE, ERUMATHALA, ALUVA EAST.** **16. JINSON, AGED 31 YEARS,** - **S/O. PAULOSE,PUTHUSSERY HOUSE, ERUMATHALA, ALUVA EAST.** **17. SALI, AGED 38, S/O. KUNJIPAREED, KIZHAKEVEETTIL, ERUMATHALA, ALUVA EAST.** **BY ADV. SRI.G.SANTHOSH KUMAR (P).** ## **RESPONDENT(S):** **--------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31.** **2. SUB INSPECTOR OF POLICE, ALUVA EAST POLICE STATION, ALUVA- 683 101.** **BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **msv/** **Crl.MC.No. 3589 of 2016** **------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES:** **ANNEXURE I : CERTIFIED COPY OF THE FIR IN CRIME NO.475/2013 DTD.13.2.2013 OF ALUVA EAST POLICE STATION.** **ANNEXURE II: CERTIFIED COPY OF THE CHARGE-SHEET IN CC.729/2013 REFILED AS CC.NO.678/2014 DTD 16.3.2013. ANNEXURE III: TRUE COPY OF THE JUDGMENT DTD.22.5.2014 IN CC.NO.729/2013 OF THE J.F.C.M-I, ALUVA.** **ANNEXURE IV: TRUE COPY OF THE JUDGMENT DTD.14.7.2015 IN CRL.M.C.NO.4340/2015.** **ANNEXURE V: TRUE COPY OF THE JUDGMENT REPORTED IN 2013 (4) KHC, 539.** **RESPONDENT(S)' ANNEXURES:** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **RAJA VIJAYARAGHAVAN V., J. ===================** Crl. M.C. No.3589 of 2016 ======================= Dated this the 7[th] day of July, 2016 ## ORDER 1.The functioning of a company by name “Sahyadri Iron Ore Company” at Nalam Mile was opposed to by a group of local residents who formed an association by name “Sahyadri Company Samara Samithi”. They opposed the laying of the underground cables. According to the volunteers of the “Samara Samithi” the company was functioning without a proper license and the cables were being laid without obtaining necessary consent from the authorities concerned. 2.On 13.2.2013, the petitioners along with the 4[th] accused and about 132 others are alleged to have unlawfully assembled in the Aluva - Munnar private road by violating the order of this Court and sat on the road from 11 am onwards creating obstructions to the vehicular traffic as part of their protest against Crl. M.C. No.3589 of 2016 2 installation of underground cables for the Sahyadri Iron Ore Company at Nalam mile. - 3.Crime No.475 of 2013 of Aluva East Police Station was promptly registered alleging offences punishable under Sections 143, 147, 283 read with 149 of I.P.C. Later investigation was conducted and final report was laid before the jurisdictional Magistrate. - 4.Heard the learned Counsel appearing for the petitioners as well as the learned Public Prosecutor. 5.The learned Counsel points out that as per the earliest records, 150 identifiable persons were arrayed in the FIR. Later the leaders who led the agitation were removed from the array of the accused and the petitioners were falsely implicated. Referring to Annexure II final report, it is submitted that there is no specific reference to the petitioners as participants in the crime. It is urged that in respect of Crime No.2011 of 2014 which was registered in respect of similar Crl. M.C. No.3589 of 2016 3 incident which took place on 19.5.2014, this Court by Annexure A4 judgment had quashed the proceedings after holding that the implication of the accused were without basis. 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 herein is nothing but abuse of process of law. Finally, it is submitted that “Sahyadri Iron Ore Company” has stopped its functioning in view of the persistent agitation of the locals against the environmental damage caused by the said Company. 6.I have heard the learned public prosecutor as well . 7.Annexure A1 is the FIR in the crime, which discloses that a protest was carried out in a private road and though directions were given by the police personnel not to obstruct traffic, the accused did not heed to the same. It is borne out from the records that the Crl. M.C. No.3589 of 2016 4 obstruction was caused by obstructing the private road leading to the Company. No valid reason is seen stated for leaving out 138 persons from the array of the accused and for implicating the petitioners. - 8.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 private road leading to the Company . There is no allegation that the peaceful protest had turned violent . - 9.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_ Crl. M.C. No.3589 of 2016 5 _Section 141 of the Indian Penal Code. One of the five 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 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”._ Crl. M.C. No.3589 of 2016 6 10. The ratio laid down in Pouose ( 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. 11.The Apex Court in **Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. 2000(3) SCC 269** Ltd. 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 judgement wherein it was held as follows : Crl. M.C. No.3589 of 2016 7 _"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 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"._ 12.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 . Crl. M.C. No.3589 of 2016 8 13.In the result this petition is allowed and all further proceedings against the petitioners in Crime No.475 of 2013 of Aluva East Police Station shall stand quashed. Sd/- **RAJA VIJAYARAGHAVAN V. JUDGE** SKV