Allowed

Babu Khan @ Noorul Ameen v. State Rep by

Madras HC20 Jun 2022CRL OP/4995/2022

Case brief

AI extract

What is this about?

The High Court of Judicature at Madras allowed a quashing petition under Section 482 CrPC. It held that the FIR did not disclose an offence as the prosecution failed to establish criminal force or a common object to commit an offence for unlawful assembly, nor did it prove the petitioners had Covid to spread disease.

What did the court decide?

The F.I.R. in Crime No.1412 of 2020 on the file of the 1st respondent police is quashed against the petitioners.

Babu Khan @ Noorul Ameen Vs State Rep by — Quashing and FIR | Madras HC (2022)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

Dated: 20.06.2022

¶3

Coram:

¶4

THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

¶5

Crl.O.P.No.4995 of 2022

¶6

Babu Khan @ Noorul Ameen

¶7

Asanali

¶8

Abdul Kani

¶9

Thaaga Kuthpudeen @ Mohamed Kuthub Thaha

¶10

Saaha @ Shahainudeen ... Petitioners

¶11

Vs.

¶12

State represented by its The Inspector of Police, Keevalur Police Station, Nagapattinam.

¶13

(Cr. No.1412/2020) ... Respondent

¶14

Criminal Original Petition filed under Section 482 of Criminal Procedure Code, to call for the records relating to the case in Cr.No.1412 of 2020 on the file of the respondent herein and quash the same as illegal.

¶15

For Petitioner : Mr.I.Abdul Basith

¶16

For Respondent : Mr. A.Gokulakrishnan

¶17

Additional Public Prosecutor

¶18

O R D E R

¶19

This petition has been filed to quash the records relating to the case in Cr.No.1412 of 2020 registered for the offence under Section 143, 341 & 269 IPC on the file of the respondent herein.

¶20

The allegation is that on 31.08.2020 at 11.45 a.m., the petitioners, without any prior permission, unlawfully assembled and protested in a public place demanding revocation of New Education Policy and withdrawal of Environment Impact Assessment (EIA) draft and further demanded to call off dangerous amendment to criminal law. Thereby, they had committed the offences under Sections 143, 341 and 269 of I.P.C.

¶21

https://hcservices.ecourts.gov.in/hcservices/

¶22

The learned counsel for the petitioners submitted that the prosecution has been launched with false allegations and even when the entire prosecution case taken as a face value, the same would not constitute any offence and continuing the prosecution is nothing but abuse of process of law. Therefore, submitted that the same may be quashed.

¶23

The Learned Additional Public Prosecutor submitted that the accused unlawfully assembled without any prior permission and thereby, First Information has been registered.

¶24

It is to be noted that while exercising the power under Section 482, the Court should be slow, at the same time, if the Court finds that from the entire materials collected by the prosecution taken as a whole, would not constitute any offence, in such situation, directing the parties to undergo ordeal of trial will be a futile exercise and it will infringe the right of the persons and in this regard, the Apex Court in State of Haryana and others Vs. Bhajan Lal and Others reported in 1992 Supp (1) Supreme Court Cases 335, has been held as follows :

¶25

'........

¶26

(a) 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;

¶27

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

¶28

(c) 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;

¶29

(d) 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

¶30

https://hcservices.ecourts.gov.in/hcservices/

¶31

of a Magistrate as contemplated under Section 155(2) of the Code;

¶32

(e) 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;

¶33

(f) 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;

¶34

(g) 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.’

¶35

It is also relevant to note the definition of Unlawful Assembly:

¶36

'Unlawful Assembly-

¶37

An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is -

¶38

(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; or

¶39

(ii) to resist the execution of any law, or of any legal process; or

¶40

(iii) to commit any mischief or criminal trespass, or other offence; or

¶41

https://hcservices.ecourts.gov.in/hcservices/

¶42

(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; or

¶43

(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.'

¶44

Only when the assembly fit into any of the above circumstances, it could be construed as unlawful. The materials collected by the prosecution do not show that the accused had shown any criminal force to commit any mischief, crime or any offence or by way of criminal force or tried to take possession of the property or right to use of incorporeal right which is in possession of enjoyment of others or rights.

¶45

Similarly, it is not the case of the prosecution that the accused has assembled to commit any offence. When the prosecution prima facie failed to establish that the assembly of five or more persons with a common object to commit any offence or any of the circumstances shown under Section 141, mere assembly of more than five persons cannot be construed that there is an unlawful assembly. Therefore, when the people gathered to show the protest in a democratic way, such a protest, in the absence of any ingredients of offence under Section 141 cannot be construed as unlawful assembly.

¶46

As far as Sec.269 of I.P.C. is concerned, it is not the case of prosecution that the petitioners have infected with Covid, thereby their act is amounting to spread the disease. In absence of any such materials that the petitioners are infected with Covid, which will likely to spread to others, the prohibitory order does not constitute an offence.

¶47

Considering the above, this Court is of the view that the materials collected by the prosecution do not support for proving the case and continuing the prosecution on shaky or without any materials is clear abuse of process of law.

¶48

In such view of the matter, no purpose would be served in continuing the F.I.R. Hence, the same is liable to quashed.

¶49

https://hcservices.ecourts.gov.in/hcservices/

¶50

Accordingly, this Criminal Original Petition is allowed and the F.I.R. in Crime No.1412 of 2020 on the file of 1^st respondent police is quashed against the petitioners.

¶51

Sd/-

¶52

Assistant Registrar (CS-VIII)

¶53

// True Copy //

¶54

Sub Assistant Registrar

¶55

bkn

¶56

¶57