Maheswary G. v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **MONDAY, THE 17[TH] DAY OF JANUARY 2022 / 27TH POUSHA, 1943** **CRL.MC NO. 309 OF 2021** **CC 206/2020 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT,** **ERNAKULAM** ## **PETITIONER/1ST ACCUSED:** **MAHESWARY G. AGED 43 YEARS D/O.R.GANGADHARAN PILLAI, SREEPADAM, PRA 194 A, THOPPIL, THRIKKAKARA P.O., ERNAKULAM-682 021.** **BY ADV R.V.SREEJITH** ## **RESPONDENT/STATE:** **THE STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF EKRALA, ERNAKULAM-682 031.** **SR.PP - SMT. M.K.PUSHPALATHA** ## **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **26.11.2021, THE COURT ON 17.01.2022 PASSED THE FOLLOWING:** Crl.M.C.309/2021 2 ## **O R D E R** Petitioner is the first accused in C.C. 206/2020 on the file of the Additional Chief Judicial Magistrate's Court, Ernakulam, which was taken on file on the basis of the final report laid in crime No.1565/2018 of Ernakulam Town North police station. That crime was registered suo motu by the Sub Inspector of that police station alleging offence under Sections 143, 147, 283 read with 149 IPC. It was registered on 10.10.2018 at 12.45 hours on the basis of an incident happened at 11.00 hours. It is alleged that the accused persons eight in number, who are named along with 500 identifiable persons had formed an unlawful assembly and in prosecution of their common object and fully conscious that they are members of the unlawful assembly, in protest against the failure of the State Government in not filing a review petition against the judgment of the Hon'ble Supreme Court on the issue of entry of women in Sabarimala, created blockade in Kaloor junction in Banerjee road and thereby committed the said offence. After completing the investigation, charge sheet was laid and now the case is pending before the Additional Chief Judicial Magistrate's Court, Ernakulam. The petitioner as the first accused has moved this Court for quashing the Annexure-I First Information Report and Annexure-II final Crl.M.C.309/2021 3 report. 2. According to the petitioner, though the incident had allegedly happened on 10.10.2018, herself and others were arrested on 26.10.2018 and that would show that the police had not taken steps for avoiding the alleged traffic block. Moreover, detecting officer and investigating officer are one and the same person, which caused considerable prejudice to the petitioner. Therefore, basing on the decision in **Mohanlal v. State of Punjab [2018 (3) KLT 852]** it is pointed out that principles of natural justice are violated. Even though the Supreme Court in **Mukesh Singh v. State (Narcotic Branch of Delhi) [2020 (4) KLT 1144 (SC)]** had diluted the dictum in Mohanlal's case, according to the petitioner, the Court has to consider whether prejudice has been caused to the petitioner, depending upon the facts of the case. Moreover, there is no independent witness examined or cited by the prosecution. No pedestrian was cited to show that free traffic was restrained. According to her, she was not a member of any unlawful assembly, she has protested against the stand of the Government in permitting menstruating women to the holy shrine of Sabarimala. She has every right to protest against the objectionable stand of the Government. It is her Constitutional right crystallised through Crl.M.C.309/2021 4 numerous judicial pronouncements. She has only exercised her Constitutional right. Moreover, ingredients of the offences are not made out. The petitioner and others were demonstrating in a peaceful manner, that has not caused any obstruction to the traffic of men and vehicles, the crime and final report are abuse of the process of Court and therefore entire proceedings are sought to be quashed. 3. I heard the learned counsel for the petitioner and also the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner relied on Annexure-III order of this Court in Crl.M.C. 7029/2018 which was rendered on similar circumstances. 5. That crime was registered suo motu by the Sub Inspector after finding that the petitioner and seven others and 500 identifiable persons had conducted a demonstration at Kaloor junction and had raised provocative slogans and caused obstruction to the vehicular/pedestrian movement and thus offence under Sections 143, 147, 283 read with 149 IPC are alleged against the petitioner and eleven others. There are five witnesses in the charge sheet. CWs1 to 4 are civil police officers and CW5 is none other than the detecting officer as well as the Investigating Officer Crl.M.C.309/2021 5 who laid the charge sheet. There is no legal embargo in the detecting officer himself conducting investigation and laying the charge sheet. But as rightly pointed out by the learned counsel for the petitioner, the prosecution has a to duty to say that when a police officer does a dual role, he is expected to say that that has not caused any prejudice to the accused. Whatever it be, I am of the view that there are reasons to find at the threshold that the prosecution is bound to fail. 6. Firstly, offences under Sections143, 147 read with 149 IPC are alleged on the premise that the petitioner and 11 others along with 500 identifiable persons had formed themselves an unlawful assembly and committed rioting in prosecution of the common object of the assembly. But the prosecution has no allegation that they had committed any mischief or caused anything for attracting acts by unlawful assembly. As rightly pointed out, when acts by unlawful assembly are allegedly committed, it is necessary that basic ingredients of offence under Section 141 IPC are proved by the prosecution. An unlawful assembly is defined in Section 141 of the Indian Penal Code. Ingredients of offence under Section 141 are that, (1) the assembly should consist of five or more persons; Crl.M.C.309/2021 6 - (2) the object of the assembly should be one of the five objects mentioned in the section, that is: - (i) 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; - (ii) To resist the execution of any law, or of any legal process; - (iii) To commit any mischief or criminal trespass, or other offence; (iv) 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; (v) 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 As a matter of fact, nothing has been alleged in the charge that the accused persons had used any criminal force. Secondly, the prosecution was not Crl.M.C.309/2021 7 heard to say that the object of the unlawful assembly was any of the matters stated in Section 141 of the Indian Penal Code. If the basic ingredients of Section 141 of the IPC are wanting, offence under Sections 143 and 147 read with 149 IPC cannot sustain. 7. Turning to offence under Section 147 IPC, it is the punishment for rioting by unlawful assembly. According to Section 146 of the IPC, whenever force or violence is used by an unlawful assembly or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. As adverted to earlier, the prosecution does not have a case that the petitioner had used any criminal force and therefore offence under Section 147 IPC also is not made out, on the face of the records. 8. As indicated earlier, there are only official witnesses in the charge sheet. None of the persons who had suffered any hardship or traffic block due to the acts committed by the petitioner has been cited in the charge sheet. In this connection, it is apposite to refer to the following paragraph in **Preetha K.K. and others v. State of Kerala and another [2016 (2) KLT 482]** , where this Court has considered the necessary ingredients of Section 283 IPC: Crl.M.C.309/2021 8 “11. As far as the offence under Sec. 283 of the I.P.C is concerned, there should be some clear and cogent material to disclose that obstruction was caused to any person in any public way. In none of the statements and materials, which are accompanying the impugned Annexure-I final report/charge sheet, is there even a remote whisper anywhere therein as to any alleged obstruction caused by anyone of the accused to persons who are using the public way. Not even a single person so alleged to be obstructed by any such alleged act of the accused is even arrayed as witness in Annexure-I proceedings.” 9. There are only official witnesses in the charge sheet. None of the pedestrians or persons who had moved/affected by the blockade allegedly created by the petitioner and others has been cited in the charge sheet. There is only a general statement that the acts of the petitioner and others had caused obstruction to the free movement of vehicles and pedestrians. In order to attract offence under Section 283 of the IPC such a sweeping statement is not sufficient and no earnest attempt has been made to say that the acts of the petitioner had caused any such hardship to the general public. 10. It is a fact that the judgment of the Hon'ble Supreme Court permitting entry of women in Sabarimala had far reaching impact in Kerala society. There was widespread demand for moving the Supreme Court Crl.M.C.309/2021 9 with a review petition. The Government was being pressurised by the general public for making the Government to think on that lines. It is true that the Supreme Court itself had decided to rehear the matter. Whatever it may be, at that point of time a cross-section of the general public was very much agitated over the issue and the petitioner and others were making the protest in a peaceful manner in the wake of the order of the Supreme Court. They have not committed any act of violence. None of the ingredients of offence under Section 141 IPC is attracted; in that backdrop, if the petitioner is made to face trial, that would be a futile exercise and continuation of the proceedings would be an abuse of the process of Court. Therefore this is a fit case warranting interference under Section 482 of the Cr.P.C. 11. Resultantly, entire proceedings in C.C. 206/2020 on the file of the Additional Chief Judicial Magistrate Court, Ernakulam, as far the petitioner is concerned, are quashed and the petitioner shall stand exonerated. Crl. M.C. is allowed as above. **Sd/-** okb/11.1.22 **K.HARIPAL JUDGE** //True copy// P.S. to Judge Crl.M.C.309/2021 10 PETITIONER ANNEXURES ANNEXURE I THE CERTIFIED COPY OF THAT FIR IN CRIME NO.1565 OF 2018 OF ERNAKULAM TOWN NORTH POLICE STATION DATED 10.10.2018. ANNEXURE II THE CERTIFIED COPY OF THAT FINAL REPORT FILED BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM PENDING AS CC NO.206 OF 2020. ANNEXURE III THE TRUE COPY OF THE JUDGMENT IN CRL.MC NO.7029 OF 2018 PASSED BY THIS HON'BLE COURT.