Shinod M. v. State of Kerala and Sub Inspector of Police, Nedumangad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 02ND DAY OF SEPTEMBER 2019 / 11TH BHADRA, 1941** ## **Crl.MC.No.4143 OF 2019(G)** **CC NO.282/2012 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-II, NEDUMANGAD** **CRIME NO.63/2012 OF NEDUMANGAD POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/2ND ACCUSED:** **SHINOD M., AGED 31 YEARS, S/O.MURALI, MELEPERINGALODU VEEDU, PLATHARA, VENCODU P.O., VATTAPPARA, THIRUVANANTHAPURAM-695028.** ## **BY ADV. SRI.V.A.VINOD** ## **RESPONDENTS/STATE/COMPLAINANT:** - **1 SUB INSPECTOR OF POLICE, NEDUMANGAD POLICE STATION, THIRUVANANTHAPURAM-695541.** - **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **BY PUBLIC PROSECUTOR SRI.RAMESH CHAND** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.4143 OF 2019** **2** ## **ORDER** This petition is filed under Section 482 of the Cr.P.C. 2. The petitioner herein is the 2[nd] accused in C.C. No.282 of 2012 pending on the file of the Judicial Magistrate of First Class-II, Nedumangad. In the said case, he has been summoned to answer a charge under Sections 143, 188 and 283 r/w. Section 149 of the IPC and Section 77 r/w. Section 121 of the Kerala Police Act, 2011. 3. The prosecution allegation is that on 18.01.2012, the petitioner herein along with 12 named persons and 87 others, who could be identified at sight, formed themselves into an unlawful assembly and in prosecution of their common object, took out a march from Mukkola Junction to Enikkara Junction, violating the lawful orders issued by a public servant and by their acts, caused obstruction to the free flow of traffic. 4. Heard Sri.V.A.Vinod, the learned counsel appearing for the petitioner, who contended that in view of Section 195 (1) (a) (i) of the Code of Criminal Procedure, the learned Magistrate could have taken cognizance of an offence under Section 188 of the IPC only on the **Crl.MC.No.4143 OF 2019** **3** strength of a complaint lodged by the public servant or some other public servant to whom he is administratively subordinate. He would place much reliance on the decision in **Anilakumari v. State of Kerala and Others**[1] to bring home his point that Section 188 of the IPC would apply to orders made by public functionaries and for public purposes and not to an order passed by a Court of law. He would then argue that as citizens of the country, the accused had come out to register their protest to the inaction on the part of the local authorities and their action cannot be termed as one for an unlawful purpose. Finally, it is submitted that the prosecution has cited only three police officers to bring home the charge and no independent person has come forward with an allegation that the petitioner had caused any danger, obstruction or injury to any person in any public way or public line of navigation. 5. Heard the learned Public Prosecutor and I have considered the submissions. 6. Holding peaceful demonstrations by the citizenry in order to air its grievances and to ensure that those grievances are heard in the relevant quarters, is its fundamental right. In **Mazdoor Kisan Shakti** 1 2019 (2) KLT 1106 **Crl.MC.No.4143 OF 2019** **4** **Sanghatan v. Union Of India**[2] , the Apex Court had occasion to observe that such right is specifically enshrined under Articles 19(1)(a) and 19(1) (b) of the Constitution of India. It was further held that Article 19(1)(a) confers a very valuable right on the citizens, namely, right of free speech. The Hon’ble Court went on to observe that Article 19(1)(b) gives right to assemble peacefully and without arms. Together, both these rights ensure that the people of this country have right to assemble peacefully and protest against any of the actions or the decisions taken by the Government or other Governmental authorities which are not to the liking. Legitimate dissent is a distinguishable feature of any democracy. Question is not as to whether the issue raised by the protesters is right or wrong or it is justified or unjustified. The fundamental aspect is the right which is conferred upon the affected people in a democracy to voice their grievances. Dissenters may be in minority. They have a right to express their views. A particular cause which, in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated. The Courts have always protected the valuable right of peaceful and orderly demonstrations and protests. 7. In the case on hand, the prosecution has cited three 2 [AIR 2018 SC 3476] **Crl.MC.No.4143 OF 2019** **5** witnesses to bring home the charge. CW's 1 and 2 are the officers, who accompanied CW3, the Sub Inspector of Police, Nedumangad, who registered the crime, conducted the investigation and laid the final report. As rightly submitted by the learned counsel appearing for the petitioner, Section 188 of the IPC is clearly not attracted. Furthermore, there is a bar under Section 195 (1) (a) (i) in taking cognizance of the said offence. In order to attract the offence under Section 283 of the IPC, the prosecution will have to show that the accused had caused any danger, obstruction or injury to any person in any public way or public line of navigation. No one has come forward with any such grievance. Furthermore, in order to attract the offence under Section 143 of the IPC, it has to be shown that the accused were members of an assembly and that the assembly was unlawful. The essentials of an “unlawful assembly” are (a) there is an assembly of five or more persons (b) they must have a common object and (c) the common object must be to achieve one of the five objectives specified in the section. Section 147 of the IPC provides punishment for rioting. In the case on hand, there are no materials to show that the accused had formed themselves into an unlawful assembly and their common object was to achieve the objectives in Section 141 of the IPC. There are no materials to even remotely conclude that they had resorted **Crl.MC.No.4143 OF 2019** **6** to force or violence. I am of the view that even the basic ingredients of the offences under Sections 143, 147 and 283 of the IPC are not made out in the instant case against the petitioner. Insofar as the offence under Section 77 of the Kerala Police Act, 2011 is concerned, the prosecution has no case that the District Police Chief has issued any special or general directions to regulate nuisance caused by noise or that the same was violated by the petitioner. 8. 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. In the event, however, on a perusal of the complaint or the final report, the court comes to a conclusion that the allegations levelled in the complaint or charge-sheet on the face of it do 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. Having considered all the relevant facts, I am of the view that the continuance of the criminal proceedings against the petitioner is a sheer abuse of process. **Crl.MC.No.4143 OF 2019** **7** In the result, this petition is allowed. Annexure-II final report and all further proceedings pursuant thereto now pending against the petitioner as C.C. No.282 of 2012 on the file of the Judicial Magistrate of First Class-II, Nedumangad are quashed. Sd/- RAJA VIJAYARAGHAVAN V., JUDGE avs **Crl.MC.No.4143 OF 2019** **8** ## APPENDIX PETITIONER'S/S EXHIBITS: ANNEXURE I CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.63/2012. ANNEXURE II CERTIFIED COPY OF THE FINAL REPORT IN C.C.NO.282/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, NEDUMANGAD. ## **RESPONDENT'S/S EXHIBITS:** **NIL** **avs //TRUE COPY// P.A TO JUDGE**