Sabu 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. 3391 of 2016 ()** **--------------------------CC.NO. 1252/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM CRIME NO. 1403/2015 OF KOTHAMANGALAM POLICE STATION, ERNAKULAM** **--------------------** ## **PETITIONER(S):** **-------------------------** ## **1. SABU,** - **AGED 39, S/O. CHANDRAN, PUTHENPURAYIL HOUSE, ELAGAVOM KARA, VARAPETTY KARA, VARAPPETTY VILLAGE.** **2. DAS, AGED 42, S/O. CHANDRAN, PUETHENPURA HOUSE, ELAGHAVAM KARA, VARAPPETTY VILLAGE, KOTHAMANGALAM.** **3. AKHIL, AGED 26, S/O. AYYAPPAN, PARIPPILKUDY HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY, KOTHAMANGALAM.** ## **4. BIJU MON,** **AGED 41, S/O. MATHAI, MANNEKUDY HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **5. AJAYAN,AGED 49, S/O. KUNJAN, THURUTHEL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY,** **KOTHAMANGALAM.** ## **6. ELDHOSE,** - **AGED 39, S/O. OUSEPH, MANNEKUDY HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, VARAPPETTY VILLAGE, KOTHAMANGALAM.** **7. THANKKAPPAN,** **AGED 46, S/O. KOCHUKUNJU, PADINJARUPARAMBIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **8. MOHANAN, AGED 42, S/O. KUPPA, VALIYAMADATHIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **2/-** **-2-** ## **CRL.MC.NO.3391/2016** ## **9. RAJU,** - **AGED 49, S/O. SHIVARAMAN, MALAYATTIKUDY HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA,** - **KOTHAMANGALAM.** **10. SAJI KUNJAPPAN, AGED 35, S/O. KUNJAPPAN, PLAVIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA,** **KOTHAMANGALAM.** ## **11. RAJESH,** - **AGED 38, S/O. KRISHNANKUTTY, THEKKETHODIYIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** **12. GOPALAN, AGED 75, S/O. UNNIKRISHNAN, THEKKEKOMBANAAL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** ## **13. GEORGE,** - **AGED 66, S/O. MATHAI, CHENAYAMPILLIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA,** - **KOTHAMANGALAM.** **14. AJI, AGED 38, S/O. KUNJAPPAN, PADINJAREPARAMBIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA,** **KOTHAMANGALAM.** **15. MOLY, AGED 49, W/O. PAULOSE, MANNEKUDY HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA,** **KOTHAMANGALAM.** ## **16. SUHAAN,** - **AGED 60, W/O. ABRAHAM, MANNEKUDY HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA,** - **KOTHAMANGALAM.** ## **17. AMMINI,** - **AGED 65, S/O. CHANDRAN, PUTHENPURA HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA,** - **KOTHAMANGALAM.** ## **18. BHAVANI,** - **AGED 63, S/O. CHELLAPPAN, PULPARAMBIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA,** - **KOTHAMANGALAM.** **19. SANTHA,AGED 52, W/O. THANKAPPAN, MALAYATTILKUDY HOUSE, KANDOTHOPADY BHAGAM,** **VARAPPETTY KARA, KOTHAMANGALAM.** **3/-** **-3-** ## **CRL.MC.NO.3391/2016** ## **20. JISA PAUL, AGED 45, W/O. PAUL, VELAMMAVUDY VEETTIL, VARAPPETTY VILLAGE, VARAPETTY KARA,** **KOTHAMANGALAM.** ## **21. OMANA, AGED 44, W/O. THANKKAPPAN, PADINJAREMPARAMBIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** ## **22. SUJA, AGED 30, W/O. BINEESH, VALLIMARIYIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** ## **23. OMANA,** **AGED 39, W/O. DAS, PUTHENPURAYIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** ## **24. JAYA, AGED 45, W/O. GOPI, VALIYAMADATHIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** ## **25. MINI, AGED 39, W/O. SAJI, PARAYIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA,** **KOTHAMANGALAM.** ## **26. SREEJA,** **AGED 34, W/O. VINOD, PAYYAMKUDI HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA,** **KOTHAMANGALAM.** **27. SANTHA, AGED 45, W/O. THANKKAPPAN, EDAPPATTUMALYIL HOUSE, KANDOTHOPADY BHAGAM, VARAPPETTY KARA, KOTHAMANGALAM.** ## **BY ADVS.SRI.S.RENJITH SRI.K.R.PRATHISH** ## **RESPONDENT :** - **------------------------** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** ## **BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25-07-2016,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** **Crl.MC.No. 3391 of 2016 () --------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** **----------------------------------------------** ## **ANNEXURE A1 CERTIFIED COPY OF THE FIR IN CRIME NO.1403/2015 OF KOTHAMANGALAM POLICE STATION, ERNAKULAM.** **ANNEXURE A2 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.1403/2015 OF KOTHAMANGALAM POLICE STATION. ANNEXURE A3 COPY OF THE STOP MEMO ISSUED BY THE VARAPPETTY GRAMA PANCHAYAT TO THE OSCAR PLYWOOD UNIT DTD.8.4.2015.** **ANNEXURE A4 COPY OF THE ORDER DTD. 15.7.2015 IN WPC NO.21286/2015. ANNEXURE A5 COPY OF THE TITLE DEED NO.569/2010 DTD. 17.3.2010.** **ANNEXURE A6 COPY OF THE JUDGMENT DATED 02/03/2016 IN WP(C).NO.23223 OF 2015 ANNEXURE A7 COPY OF THE ORDER DATED 26/05/2016 IN REVISION PETITION NO.79 OF 2015 OF TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM** **RESPONDENT(S)' ANNEXURES: NIL** **-----------------------------------------------** **/TRUE COPY/** **P.S.TO JUDGE** **sts** **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.3391 of 2016 ----------------------------------------Dated this the 25[th] day of July, 2016** ## **O R D E R** - 1.A factory by name Oscar Plywoods, 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 on 12.8.2015 in front of the factory premises. Immediately thereafter Annexure-A1 Crl.M.C. 3391/2016 2 Crime was registered against the petitioners alleging offence punishable under sections 143, 147, 149, 188 and 283 of the IPC. Later investigation was conducted and Annexure A 2 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 12.8.2015 at 12.40 p.m., the petitioners had unlawfully assembled in front of the Oscar Plywood and raised slogans and thereby obstructed the vehicular traffic 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 alleging commission of offence under section 188 of the Crl.M.C. 3391/2016 3 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 and though directions were given by the police personnel Crl.M.C. 3391/2016 4 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 situations covered by that section has to be satisfied to hold that the_ Crl.M.C. 3391/2016 5 _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_ Crl.M.C. 3391/2016 6 _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 Section 188 of the IPC. Crl.M.C. 3391/2016 7 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 face of it does not constitute or disclose any offence as alleged,_ Crl.M.C. 3391/2016 8 - _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. - 15.All further proceedings against the petitioners in C.C.No.1252 of 2015 on the files of the Judicial Magistrate of First Class Court-I, Kothamangalam will stand quashed. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps