Suresh Kumar T.M. and Rajesh R. v. State of Kerala and PRAJEESH T.C.

Crl.M.C.No.7534/22 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 15[TH] DAY OF NOVEMBER 2022 / 24TH KARTHIKA, 1944_ ## _CRL.MC NO. 7534 OF 2022_ _CRIME NO.21/2018 OF SANNIDHANAM POLICE STATION,_ ## _Pathanamthitta_ _AGAINST THE ORDER/JUDGMENTST 435/2019 OF GRAMA NYAYALAYA,_ ## _RANNI, PATHANAMTHITTA._ ## _PETITIONER/ACCUSED NOS.27 & 1:_ _1 SURESH KUMAR T.M., AGED 56 YEARS, S/O.MADHAVAN NAIR, RESIDING AT THAKARAPARAMBIL (H), CHENGARA, PATTIMATTOM P.O., ERNAKULAM DISTRICT , PIN – 683 562._ _2 RAJESH. R., AGED 46 YEARS, S/O.RAMAKRISHNAN P.M., RESIDING AT GOURINANDANAM, PERUMBAVOOR P.O., ERNAKULAM DISTRICT, PIN – 683 542. BY ADVS. SAJITH KUMAR V. J.VISHNU VIVEK A.V. GODWIN JOSEPH PRANAV PRADEEP_ ## _RESPONDENT/S:_ _1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (THROUGH THE SUB INSPECTOR OF POLICE, SANNIDHANAM POLICE STATION), ERNAKULAM DISTRICT , PIN – 682 031._ Crl.M.C.No.7534/22 2 - _2 PRAJEESH T.C.,_ _SUB INSPECTOR OF POLICE, SANNIDHANAM POLICE STATION, SABARIMALA SANNIDHANAM, PATHANAMTHITTA DISTRICT , PIN – 689 713._ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON_ _15.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.No.7534/22 3 ## **O R D E R** The petitioners are accused Nos. 27 and 1 in Crime No.21 of 2018 of Sannidhanam Police Station, which is now pending as S.T.No.435 of 2019 before the Gramanyayalaya, Ranni. The offences alleged against the petitioners are under Sections 143, 144, 147, 353, and 188, read with Section 149 IPC. 2. The prosecution case is that the accused persons, along with several other persons, formed an unlawful assembly near Sabarimala Sannidhanam at 10:30 P.M on 18.11.2018 with the intent to protest against the judgment of the Hon’ble Supreme Court permitting entry of women to the holy shrine. It was further alleged that the accused persons sat in protest on the concrete staircases and pathway near the Sannidhanam Police Station, chanting religious/spiritual slogans hailing Lord Ayyappa and thereby disobeyed the prohibitory orders passed by the District Collector. Annexure-A is the FIR and Annexure-B is the final report submitted by the Police. This Crl.M.C. is filed for quashing all further proceedings pursuant to Annexure-B final report as against the petitioners. Crl.M.C.No.7534/22 4 3. Heard Sri.V.Sajith Kumar, learned counsel for the petitioners and Sri.C.S.Hrithwik, learned Public Prosecutor for the State. 4. One of the crucial contentions raised by the petitioners is that, as far as the offence under Section 188 of IPC is concerned, under no circumstances, cognizance can be taken by the learned Magistrate based on the Police report submitted under Section 173(2) Cr.P.C. According to him, in the light of the specific prohibition contained under Section 195(1) (b) of Cr.P.C., the cognizance taken for the said offence is unsustainable. On perusal of the records, it is seen that the learned Magistrate has taken cognizance of the offence punishable under Section 188 IPC. As rightly pointed out by the learned counsel for the petitioner, in the light of the statutory stipulation contemplated under Section 195(1)(a) of Cr.P.C, no cognizance can be taken by a court for the offence punishable under Section 188 IPC, except on a complaint submitted by a public servant whose orders are allegedly violated by the accused persons or the public servant to whom he is administratively subordinate. In this case, the specific allegation Crl.M.C.No.7534/22 5 against the accused persons is that the activities committed by the petitioners and other accused were in violation of the prohibitory orders passed by the District Magistrate. Hence, it was not possible for the court to take cognizance based on the final report submitted by the Police under Section 173(2) Cr.P.C. Therefore, to the extent the prosecution based on cognizance taken by the learned Magistrate for the offence under Section 188 IPC is legally unsustainable and liable to be quashed. 5. The other offence is under Section 353 IPC. The aforesaid provision reads as follows: “353. Assault or criminal force to deter public servant from discharge of his duty.—Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 6. In order to attract the aforesaid provision, the accused persons must have assaulted or used criminal force on any person Crl.M.C.No.7534/22 6 being a public servant who is in his duty as a public servant. However, going by the allegations in the final report submitted in this case, it can be seen that there is no case of any assault being committed or the use of criminal force by any of the accused persons. On the other hand, they were sitting near the Sannidhanam and chanting slogans in violation of the prohibitory orders passed by the District Magistrate. As far as the act of chanting religious slogans is concerned, under no circumstances the same by itself can be treated as an offence. It is true that the chanting of such slogans was allegedly made by the accused as a protest to the judgment rendered by the Honourable Supreme Court. However, even if that be so, no offence would get attracted merely because of the same. To hold a protest is part of the fundamental right of a person as it forms part of the freedom of speech and expression as enshrined under Article 19(1) (a) of the Constitution of India. Article 19(1)(b) protects the right of the citizen to assemble peaceably and without arms. Even according to the prosecution, chanting of religious slogans was in protest against the verdict of the Honourable Supreme Court, permitting Crl.M.C.No.7534/22 7 entry of women in Sabarimala temple. So long as the protest and assembly of the persons for the purpose of the same were peaceable, those acts are protected by the aforesaid articles of the Constitution. Merely because the protest is against a judgment of a court of law, the citizens would not lose the said right, provided such protest is peaceful. Our Constitutional principles are intended to promote and protect democracy, and the right to protest is one of the essential facets of democratic principles. Therefore, making a protest peaceably by itself would not make out any offence. 7. Moreover, to attract the offence under Section 353 IPC, there must be a commission of some acts by the accused, which amounts to ‘criminal force’ or ‘assault’, as defined under Section 350 and 351 IPC, respectively. On going through the allegations in the final report, I am unable to find any materials which would indicate any ‘criminal force’ as defined under Section 350 IPC or ‘assault’ as defined under Section 351 IPC were made. The accused were sitting and chanting slogans in protest, which by itself cannot be treated as exercising ‘criminal force’ or Crl.M.C.No.7534/22 8 committing assault. When the right to protest is a fundamental right and protected under the Constitution of India, holding such a protest peaceably cannot be treated as an act amounting to ‘criminal force’. Similalry, for attracting the ‘assault’ as defined under section 351, the accused must have made a gesture or preparation intending or knowing that such gesture or preparation is likely to cause apprehension to any person present that the person making such gesture or preparation is about to use criminal force. Here also, one of the ingredients is ‘criminal force’; though an apprehension of such criminal force alone is sufficient. As mentioned above, when the act committed by the person is coming within the sphere of fundamental rights, it cannot be treated as an act where there exists criminal force. The learned counsel for the petitioners also placed reliance upon a decision rendered by this Court in **Hariprasad and another v. State of Kerala [ILR 2017(2) Kerala 395]** , wherein the circumstances in which offence under Section 353 IPC would be attracted are discussed. I am in agreement with the principles laid down in the said judgment. Thus, from a careful examination of the materials Crl.M.C.No.7534/22 9 placed on records, including the allegations contained in Annexure-C final report, it can be seen that it did not contain the necessary materials for attracting the offence under Section 353 IPC. 8. What remains are the offences under Sections 143, 144 and 147 read with Section 149 IPC. Section 143 provides for the punishment of unlawful assembly. The terms unlawful assembly is defined in section 141, which reads as follows: 141. Unlawful assembly.—An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is— - (1) 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; or - (2) To resist the execution of any law, or of any legal process; or - (3) To commit any mischief or criminal trespass, or other offence; or - (4) 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 Crl.M.C.No.7534/22 10 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; or (5) 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. Explanation.—An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. 9. From the above it is evident that five circumstance are mentioned therein. As observed by this court in **Prakash karat and Others v. State of Kerala and Another [2022 (6) KHC** **531],** every assembly of five or more persons by itself will not become an unlawful assembly. An assembly of five or more persons will become illegal only when they have a common object and the said object falls within any of the said five categories mentioned in the above provision. It is also to be noted that, out of the five, for three categories, one of the necessary ingredients is ‘criminal force’. I have already found that, in this case, there are no allegations to establish the exercise of criminal force by the accused. Therefore what remains are categories covered in the Second and Third in the said provision. The second category is to Crl.M.C.No.7534/22 11 resist the execution of any law or any legal process. In this case, the allegation is that they conducted a protest, and such an act by itself cannot be treated as an act coming within the said category. Similarly, there is also no allegation that the accused committed any mischief or criminal trespass. Therefore, it can be safely concluded that there were no acts alleged against the petitioners for constituting unlawful assembly. Therefore the offences under the provisions of sections 143, 144 and 147 would not be attracted. 10. While arriving at the said view, I am conscious of the fact that the final report contains a vague allegation that some of the accused pushed some of the police officers. However, in the facts of the case, I am of the view that such an allegation is not sufficient to hold that there was the application of criminal force. First of all, the details of the persons who allegedly committed that specific act are not mentioned in the final report. Moreover, it is also evident that such an incident occurred when the police tried to remove the protestors from the place of occurrence forcibly. Therefore, at the most, it could be an instantaneous response by Crl.M.C.No.7534/22 12 some of the members of the assembly to the forcible removal and it cannot be treated as the common object of the assembly so as to make the same an unlawful assembly. 11. There is yet another aspect. The said alleged acts are trivial and I am of the view that such act would not make out any offence. This court, in **Narayanan and Ors. v. State of Kerala [1987 CriLJ 741].** In paragraph 5 of the said decision, it was observed as follows: 5. When considering the question whether the acts alleged against the petitioners would amount to an offence of wrongful restraint, the maxim "de minimis non curat lex" (the law does not take account of trifles) should be borne in mind if the harm caused or intended to be caused is so slight that no person of ordinary sense and temper would complain of such harm. The above principle is embodied' in Section 95 of the Code. The definitions of various offences in the Code are so framed as to bring a number of activities within the letter of the penal law. If we are to go by the definitions alone, "it is theft to dip a pen in another man's ink, it is mischief to crumble one of his wafers, it is assault to cover him with a cloud of dust by riding past him, it is hurt to incommode by Crl.M.C.No.7534/22 13 pressing against him in getting into a carriage." At the same time those are but few of the innumerable acts without the performance of which men cannot live together in society, and acts which it is desirable that they should do. It depends upon the degree of the acts and that is why the authors of the Code took particular care in striking a note of caution by incorporating Section 95 in the Code. 12. As observed by this Court in the aforesaid decision, Section 95 of IPC provides that nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such damage.I am of the view that the principles laid down in the said judgment are clearly applicable to this case. 13. In such circumstances, after examining all the materials, it is evident that the prosecution against the petitioner pursuant to Annexure-B is a clear abuse of the process of court and, therefore, liable to be quashed. In the result, this Crl.M.C is allowed and the proceedings against the petitioners pursuant to Annexure-B final report in Crime No.21 of 2018 of Sannidhanam Police Station and all further Crl.M.C.No.7534/22 14 proceedings pursuant to it, including the proceedings in S.T.No.435 of 2019 on the file of the Gramanyayalaya, Ranni, as against the petitioners are hereby quashed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** _DG/17.11.22_ Crl.M.C.No.7534/22 15 ## _APPENDIX OF CRL.MC 7534/2022_ _PETITIONER ANNEXURES_ _Annexure C A TRUE COPY OF THE STATEMENT MADE BY THE CW2 UNDER SECTION 161 CRPC._ - _Annexure C(a) A TRUE COPY OF THE STATEMENT MADE BY THE CW5 UNDER SECTION 161 CRPC._ - _Annexure C(b) A TRUE COPY OF THE STATEMENT MADE BY THE CW6 UNDER SECTION 161 CRPC._ - _Annexure C(c) A TRUE COPY OF THE STATEMENT MADE BY THE CW7 UNDER SECTION 161 CRPC._ - _Annexure C(d) A TRUE COPY OF THE STATEMENT MADE BY THE CW8 UNDER SECTION 161 CRPC._ - _Annexure C(e) A TRUE COPY OF THE STATEMENT MADE BY THE CW9 UNDER SECTION 161 CRPC._ - _Annexure C(f) A TRUE COPY OF THE STATEMENT MADE BY THE CW10 UNDER SECTION 161 CRPC._ - _Annexure C(g) A TRUE COPY OF THE STATEMENT MADE BY THE CW11 UNDER SECTION 161 CRPC._ - _Annexure D A TRUE COPY OF THE G.O.(CRI.) NO. 70/2021/HOME DATED 26.02.2021 ISSUED BY THE SECRETARY, DEPARTMENT OF HOME AFFAIRS, GOVERNMENT OF KERALA._