Allowed

Dr. Thomas Mar Athanasius v. the State of Kerala

Kerala HC21 May 2024Crl.MC/7690/2017

Case brief

AI extract

What is this about?

Clergy accused of unlawful assembly and obstructing traffic during a peaceful dharna before Puthencruz Police Station sought quashing of the FIR. The court found no unlawful assembly under Section 141 IPC and photographs showed no obstruction, quashing FIR No.1411/2017.

What did the court decide?

FIR No.1411/2017 of Puthencruz Police Station registered against petitioners quashed; Crl.M.C. allowed.

Dr. Thomas Mar Athanasius Vs the State of Kerala — Quashing and FIR | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K. BABU

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TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946

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CRL.MC NO. 7690 OF 2017

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(F.I.R.NO.1411/2017 OF PUTHENCRUZ POLICE STATION)

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PETITIONERS/ACCUSED NOS.1 TO 5:

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1 DR. THOMAS MAR ATHANASIUS METROPOLITAN, MUVATTUPUZHA, PUTHENCRUZ, ERNAKULAM RURAL.

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2 YOHANON MAR POLICARPOS METROPOLITAN, THRIKKUNNATHU SEMINARY, ALUVA.

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3 FR.JOHN MOOLAMATTOM, AGED 51 YEARS VICAR, ST.MARY'S ORTHODOX SYRIAN CHURCH, KANNIYATTUNIRAPPU.

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4 FR.VIJU ELIAS, VICAR, ST.MARY'S ORTHODOX SYRIAN CHURCH, VARIKKOLY.

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5 FR.ELIAS CHERUKATTU, VICAR, ST.MARY'S ORTHODOX SYRIAN CHURCH, AROOR, MARYGIRY.

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BY ADVS.SRI.S.SREEKUMAR (SR.)
SRI.M.A.MOHAMMED SIRAJ
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA

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RESPONDENT:

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THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI.G.SUDHEER

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON

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21.05.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C.No.7690 of 2017

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ORDER

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The petitioners seek to quash FIR No.1411/2017 of Puthencruz Police Station. The petitioners are arraigned as accused Nos.1 to 5 in Annexure-A FIR. They are alleged to have committed offences punishable under Sections 143, 147, 283 and 149 of the Indian Penal Code and Section 4(1) of the Kerala Public Ways (Restriction of Assemblies and Processions) Act, 2011.

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Petitioner No.1 is the Bishop of Kandanad East Diocese of Malankara Orthodox Syrian Church, petitioner No.2 is the Bishop of Angamaly Diocese of Malankara Orthodox Syrian Church, petitioner No.3 is the Vicar of St.John’s Orthodox Syrian Churth, Kanniyattunirappu and petitioner Nos.4 and 5 are the Vicars of Varikkoli St.Mary’s Orthodox Syrian Church and St.Mary’s Orthodox Syrian Church, Aroor respectively.

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St.John’s Orthodox Syrian Church, Kanniyattunirappu is a constituent church of Malankara Orthodox Syrian Church. The prolonged litigation between the Orthodox faction and Jacobite faction in the community reached the Supreme Court leading to the judgments

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Crl.M.C.No.7690 of 2017

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in P.M.A.Metropolitan v. Moran Marthoma (AIR 1995 SC 2001 and AIR 1996 SC 3121) and K.S.Varghese v. St.Peters & St.Pauls Church, Kolencherry (2017 (4) KLT 261).

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The petitioners claim that with the final disposal of K.S.

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Varghese’s case they alone got the right to conduct Holy Mass and other religious services in the Church.

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Petitioner No.3 filed representations before the Superintendent of Police, Ernakulam Rural, the Deputy Superintendent of Police, Muvattupuzha, the Circle Inspector and the Sub Inspector of Police, Puthenruz Police Station, alleging that the rival faction obstructed his religious services and he apprehends that they would repeat the same on 13.8.2017.

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On 13.8.2017 people led by the petitioners conducted a dharna in front of Puthencruz Police Station. The Police registered the FIR under challenge alleging that the petitioners formed themselves into an unlawful assembly, conducted dharna in front of Puthencruz Police Station and disrupted traffic of vehicles and movements of pedestrians through the National Highway.

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Heard the learned counsel for the petitioners and the learned Public Prosecutor.

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Crl.M.C.No.7690 of 2017

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The learned counsel for the petitioners submitted that the FIR does not disclose any offences as alleged. The learned counsel further relying on Annexure-J photographs contended that the allegations in the FIR are baseless.

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The learned Public Prosecutor opposed the reliefs seeking

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to quash the proceedings contending that the FIR discloses the ingredients of the offences alleged.

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The petitioners face allegations for the offences committed under Sections 143, 147, 283 and 149 of the Indian Penal Code and Section 4(1) of the Kerala Public Ways (Restriction of Assemblies and Processions) Act, 2011.

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To attract the offences under Sections 143, 147 and 149

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of IPC the prosecution has to establish an unlawful assembly as defined under Section 141 of IPC.

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An ‘unlawful assembly’ is an assembly of five or more persons, if their common object is-

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to overawe by criminal force

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(a) the Central Government, or

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(b) the State Government, or

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(d) any public servant in the exercise of lawful power;

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Crl.M.C.No.7690 of 2017

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to resist the execution of law or legal process;

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to commit mischief, criminal trespass, or any other offence;

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by criminal force;

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(a) to take or obtain possession of any property, or

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(b) to deprive any person of any incorporeal right, or

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by criminal force to compel any person

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(a) to do what he is not legally bound to do, or

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(b) to omit what he is legally entitled to do.

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The mere fact that an assembly consists of five or more persons likely to disturb the public does not reveal that any object of the assembly is one enumerated in Section 141 of IPC. The FIR simply alleges that the petitioners along with the followers assembled on the public road, which is insufficient to attract the ingredients of an ‘unlawful assembly’.

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I have carefully gone through the FIR. I failed to find any of the ingredients to attract the offence of unlawful assembly. Once the prosecution failed to establish the ingredients of the offence of unlawful assembly the offences under Sections 143, 147 and 149 are not attracted.

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The prosecution also alleges offence under Section 283 of IPC which reads thus:-

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Crl.M.C.No.7690 of 2017

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“ 283. Danger or obstruction in public way or line of navigation .- Whoever, by doing any act, or 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, shall be punished with fine which may extend to two hundred rupees.”

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The essential ingredients to attract the offence under

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Section 283 IPC are as follows:-

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“(i) A person must do an act or omit to take order with any property in his possession or under his charge;

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(ii) Such act or omission must cause danger, obstruction or injury to any person in any public way or line of navigation.”

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The prosecution has failed to establish that the petitioners have committed any act causing obstruction or injury to any person in any public way or in public line of navigation.

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What remains is the offence under Section 4(1) of the Kerala Public Ways (Restriction of Assemblies and Processions) Act, 2011. Section 4(1) of the Act says that no person shall cause any obstruction by conducting any business or meeting or assembly or procession or demonstration on any public way or part thereof.

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The learned counsel for the petitioners submitted that

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the petitioners have not caused any obstruction to the public way. It is submitted that the petitioners conducted a dharna in front of

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Crl.M.C.No.7690 of 2017

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Puthencruz Police Station, after serving Annexure-I notice to the Sub Inspector, in a democratic and peaceful manner without causing any obstruction to the traffic and without blocking the entrance to the police station, only to mark their protest against the inaction of the police. The further submission of the learned counsel for the petitioners is that the petitioners marked their protest in such a way that it is guaranteed under Articles 19 and 21 of the Constitution of India. Annexure-J photographs, the genuineness of which is not in dispute, reveal that the petitioners conducted a dharna to mark their protest in a democratic and peaceful manner. The photographs further point to the fact that the dharna conducted by the petitioners did not in any way disrupt the traffic of vehicles and the movement of pedestrians. The entrance to the police station was also not blocked.

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Though the FIR contains allegations that the petitioners obstructed the public way, the materials produced by the petitioners would lead to the conclusion that their defence is based on sound reasonable and indubitable facts and the same would rule out and displace the assertion in the complaint. Annexure-J photographs relied on by the petitioners would reject and overrule the veracity of the allegations in the FIR. In Prashant Bharti v. State (NCT of Delhi)

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Crl.M.C.No.7690 of 2017

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[(2013) 9 SCC 293] following Rajiv Thapar and Others v. Madan

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Lal Kapoor [(2013) 3 SCC 330] the Supreme Court held thus:-

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“20. In Rajiv Thapar & Ors. v. Madan Lal Kapoor (2013 (2) KLT Suppl.5 (SC) = (2013) 3 SCC 330)), the Apex Court delineated the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 of Cr.P.C.:-

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“ Step one : Whether the material relied upon by the accused is sound, reasonable, and indubitable i.e., the materials is of sterling and impeccable quality?

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Step two : whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e., the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?

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Step three : whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?

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Step four : whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

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If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) especially when it is clear that the same would not conclude in the conviction of the accused.

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Crl.M.C.No.7690 of 2017

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The principles enumerated in Rajiv Thapar (supra) are reiterated by the Supreme Court in Prashant Bharti v. State (NCT of Delhi) (2013 (1) KLT Suppl.31 (SC) = (2013) 9 SCC 293).”

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I am of the considered view that the assertions made by

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the petitioners based on Annexure-J dismiss the factual basis of the accusations levelled against them.

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On the exercise of the extraordinary power under Article

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226 of the Constitution of India or the inherent power under Section 482

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Cr.P.C., the Apex Court in State of Haryana and Others v. Bhajan Lal

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and Others (1992 Supp. (1) 335) held thus:-

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“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers

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Crl.M.C.No.7690 of 2017

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under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

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The present case is fully covered by category (3), as

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enumerated in State of Haryana (supra). I am of the view that, in the present facts and circumstances, the registration of FIR is liable to be quashed.

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Crl.M.C.No.7690 of 2017

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In the result, the Crl.M.C. is allowed. FIR No.1411/2017 of Puthencruz Police Station registered against the petitioners stand quashed.

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Sd/- K.BABU Judge

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TKS

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Crl.M.C.No.7690 of 2017

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APPENDIX OF CRL.MC 7690/2017

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PETITIONERS’ ANNEXURES

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ANNEXURE ACERTIFIED COPY OF F.I.R. NO.1411/2017 OF
PUTHENCRUZ POLICE STATION.
ANNEXURE BTRUE COPY OF JUDGMENT IN O.S.NO.35/2000 OF 1ST
ADDITIONAL DISTRICT COURT, ERNAKULAM DATED
20-12-2012.
ANNEXURE CTRUE COPY OF JUDGMENT IN WP(C)NO.3497/2005 OF
THIS HON'BLE COURT DATED 13-10-2005.
ANNEXURE DTRUE COPY OF ORDER IN SLP(C)NO.23419/2005 DTD.
25-11-2005 OF THE HON'BLE SUPREME COURT.
ANNEXURE ETRUE COPY OF ORDER IN C.M.A.NO.3 OF 2001 DATED
16-02-2001 OF THIS HON'BLE COURT.
ANNEXURE FTRUE COPY OF ORDER DATED 18-11-2002 IN
C.C.C.NO.868/2002 OF THIS HON'BLE COURT.
ANNEXURE GTRUE COPY OF JUDGMENT IN CIVIL APPEAL
NO.8478/2012 DATED 18-07-2017 OF THE HON'BLE
SUPREME COURT.
ANNEXURE HTRUE COPY OF REPRESENTATION DATED 09-08-2017
FILED BEFORE THE DEPUTY SUPERINTENDENT OF
POLICE, MUVATTUPUZHA.
ANNEXURE ITRUE COPY OF NOTICE DATED 13-08-2017 ISSUED BY
THE TRUSTEE OF THE CHURCH TO SUB INSPECTOR OF
POLICE, PUTHENCRUZ.
ANNEXURE JTRUE COPY OF PHOTOGRAPHS OF DHARNA CONDUCTED BY
THE PETITIONERS.

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TKS

Dr. Thomas Mar Athanasius v. the State of Kerala

Case brief

What is this about?

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Dr. Thomas Mar Athanasius v. the State of Kerala

Case brief

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