K.Sivasaami Vs The State of Tamilnadu, Rep. by The Sub Inspector of Police, Karur Town

BNSS, 2023, to call for the records pertaining to the Charge sheet in C.C. No. 441 of 2023 on the file of the learned Judicial Magistrate No.I, Karur, and quash the same.

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For Petitioners : Mr.R.Ramaguru

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For R-1 : Mr.S.Ravi Additional Public Prosecutor

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ORDER

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The present Criminal Original Petition has been filed by the petitioners, who are arrayed as Accused Nos.1, 2, 5 to 7 in C.C.No. 441 of 2023 on the file of the learned Judicial Magistrate No.I, Karur, seeking quashment of the final report arising out of Crime No.1531 of 2021, registered for the offences under Sections 143, 341, 294(b), 353, 290, 285 and 269 IPC and Section 3 of the Epidemic Diseases Act, 1897.

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Case of the Prosecution:

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The occurrence is alleged to have taken place on15.10.2021 at about 11.30 a.m. According to the prosecution, the petitioners, being members of the Bharathiya Janatha Party, had assembled in a

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public place during the Covid-19 period, allegedly to celebrate the announcement of the Tamil Nadu Government relating to the opening of temples on Fridays, Saturdays and Sundays.

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It is further alleged that the petitioners and others assembled without obtaining permission from the competent authority, violated traffic rules, caused public nuisance, disobeyed the directions of the police and thereby committed the offences alleged in the final report.

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On the basis of the complaint lodged by the Village Administrative Officer, the respondent police registered the FIR in Crime No.1531 of 2021 on the same day at about 3.30 p.m. After completion of investigation, the respondent filed the final report before the learned Judicial Magistrate No.I, Karur, and the same was taken on file in C.C.No.441 of 2023.

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Grounds for quash:

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The principal grounds raised by the petitioners are as

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follows:

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5.1. Firstly, the petitioners contend that the prosecution is politically motivated and that their names have been included merely because they belong to a political party.

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5.2. Secondly, it is submitted that the alleged gathering was peaceful, without arms and without any act of violence, and therefore, the same would fall within the constitutional protection of peaceful assembly under Article 19(1)(b) of the Constitution of India.

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5.3. Thirdly, the petitioners contend that the final report does not disclose any specific overt act against each of the petitioners and that omnibus allegations have been made without individual attribution.

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5.4. Fourthly, it is submitted that all the witnesses are either

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Government officials or police personnel and no independent public

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witness has been examined, though the alleged occurrence is said to have taken place in a public place.

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5.5. Fifthly, it is submitted that the ingredients of Sections 143, 341, 294(b), 353, 290, 285 and 269 IPC and Section 3 of the Epidemic Diseases Act, 1897 are not made out even if the prosecution materials are accepted in their entirety.

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Submissions on either side:

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The learned counsel for the petitioners submitted that the final report is a stereotyped prosecution arising out of a political gathering during the Covid-19 period. According to him, the prosecution has failed to specify the particular prohibitory order or statutory direction allegedly violated by the petitioners. It was further submitted that mere assembly in a public place, without violence, without weapons and without any specific act of obstruction, cannot attract Section 143 IPC.

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As regards Section 341 IPC, it was argued that there is no allegation that any particular person was wrongfully restrained from proceeding in any direction in which he had a right to proceed. With respect to Section 294(b) IPC, the learned counsel submitted that the final report does not disclose the exact obscene words allegedly uttered by the petitioners, nor does it state that such words caused annoyance to any member of the public.

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Regarding Section 353 IPC, it was contended that there is

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no allegation of assault or use of criminal force against any public servant. A mere allegation that the petitioners did not obey the police direction would not amount to an offence under Section 353 IPC. It was further submitted that Sections 290, 285 and 269 IPC have been mechanically invoked without any factual foundation. No act endangering human life, no negligent handling of fire or combustible matter and no material showing likelihood of spreading infection have been pleaded with particularity.

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Lastly, it was submitted that the prosecution has been launched without satisfying the basic statutory requirements of Section 3 of the Epidemic Diseases Act, 1897, since the final report does not indicate the specific regulation, order or lawful direction allegedly disobeyed.

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Per contra, the learned Government Advocate (Criminal Side) submitted that the petitioners had gathered in a public place during the Covid-19 period without permission and had violated the directions issued by the authorities. It was submitted that the occurrence took place during a period when public health restrictions were in force and that the petitioners, by assembling in public, had violated the applicable restrictions.

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The learned Government Advocate further submitted that the question whether the petitioners caused public nuisance, obstructed traffic or disobeyed the police direction is a matter for trial and that this Court, while exercising jurisdiction under Section

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528 BNSS, should not conduct a mini trial. It was therefore submitted that the petition deserves to be dismissed.

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Heard the learned counsels on either side and carefully perused the materials available on record.

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Point for Consideration:

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The point that arises for consideration is whether the final report in C.C.No.441 of 2023, arising out of Crime No.1531 of 2021, discloses the essential ingredients of the offences under Sections 143, 341, 294(b), 353, 290, 285 and 269 IPC and Section 3 of the Epidemic Diseases Act, 1897, so as to justify the continuation of criminal proceedings against the petitioners?

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Analysis:

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This Court is conscious of the settled principle that, at the stage of quashment, the allegations in the FIR and final report must ordinarily be taken at their face value. However, where the uncontroverted allegations do not disclose the commission of any

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offence, the High Court would be justified in exercising its inherent jurisdiction to prevent abuse of process of Court.

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In State of Haryana v. Bhajan Lal¹ , the Hon’ble Supreme

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Court has held that criminal proceedings may be quashed where the allegations, even if taken at their face value, do not constitute any offence, or where the proceedings are manifestly attended with mala fides.

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The present case is not a case involving violence, assault, damage to public property, intimidation, or any grave act affecting public order. The gravamen of the prosecution is that the petitioners assembled in a public place during the Covid-19 period and allegedly celebrated a political announcement relating to the opening of temples.

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Section 143 IPC punishes membership of an unlawful assembly. To attract the said provision, the assembly must fall

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within Section 141 IPC and must have one of the unlawful common objects enumerated therein. In the present case, the final report does not disclose that the petitioners assembled with any common object to overawe the Government by criminal force, resist execution of law, commit mischief or criminal trespass, obtain possession of property by force, or compel any person to do or omit to do any act. A mere political gathering, without the necessary unlawful common object, cannot automatically become an unlawful assembly. The final report is silent as to the specific common object. Therefore, the offence under Section 143 IPC is not made out.

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Section 341 IPC deals with wrongful restraint. There must be an obstruction which prevents a person from proceeding in any direction in which that person has a right to proceed. The final report does not name any person who was restrained. It does not state the manner in which such restraint was caused. A vague allegation of violation of traffic rules is insufficient to constitute wrongful restraint. Hence, Section 341 IPC is not attracted.

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For an offence under Section 294(b) IPC, the prosecution must disclose that obscene words were uttered in or near a public place and that such utterance caused annoyance to others. In the present case, the alleged obscene words have not been reproduced. There is also no statement indicating that any member of the public was annoyed by such words. In the absence of these basic particulars, Section 294(b) IPC cannot survive.

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Section 353 IPC requires assault or use of criminal force to deter a public servant from discharge of duty. Disobedience, argument, slogan raising or non-cooperation, by itself, will not satisfy the ingredients of Section 353 IPC unless accompanied by assault or criminal force. The final report does not allege that the petitioners assaulted any police officer or used criminal force against any public servant. Therefore, the invocation of Section 353 IPC is wholly unsustainable.

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Section 290 IPC is attracted only when there is a legally recognizable public nuisance not otherwise punishable. A general

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allegation that the petitioners caused nuisance, without particulars of obstruction, annoyance, injury or danger to the public, cannot sustain a prosecution. The prosecution materials do not show how the alleged act caused public nuisance in law. Hence, Section 290 IPC is not made out.

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Section 285 IPC deals with negligent conduct with respect to fire or combustible matter. The final report does not disclose any allegation that the petitioners handled fire, combustible material, explosives, crackers or any substance in a rash or negligent manner. In the absence of any factual foundation, the inclusion of Section 285 IPC appears to be mechanical and unsustainable.

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Section 269 IPC requires a negligent act likely to spread infection of a disease dangerous to life. During the Covid-19 period, public health regulations were undoubtedly important. However, a criminal prosecution under Section 269 IPC must still disclose the specific negligent act and the manner in which such act was likely to spread infection. The final report does not state whether the

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petitioners were Covid-positive, whether they violated any specific quarantine direction, whether they refused to wear masks, whether physical distancing norms were breached in a manner attributable to them, or how their individual acts were likely to spread infection. A bare allegation of public gathering during the pandemic, without more, cannot satisfy the penal requirement under Section 269 IPC.

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Section 3 of the Epidemic Diseases Act, 1897, makes disobedience of any regulation or order made under the Act punishable as an offence. Therefore, the foundation of prosecution must be the existence of a specific regulation, order or lawful direction and its deliberate disobedience. In the present case, the final report does not clearly identify the particular order, notification or regulation issued under the Epidemic Diseases Act which the petitioners are alleged to have violated. A prosecution under a penal statute cannot be sustained on generalities. The accused must know the precise statutory command allegedly violated. In the absence of such particulars, Section 3 of the Epidemic Diseases Act, 1897, cannot be allowed to stand.

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It is true that the evidence of official witnesses cannot be discarded merely because they are Government servants or police personnel. However, in a case where the alleged occurrence is said to have happened in a public place and the alleged offences relate to public nuisance, wrongful restraint and annoyance to the public, the total absence of any independent public witness assumes significance.

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This Court does not quash the prosecution merely because

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the witnesses are official witnesses. However, when the prosecution itself lacks the essential ingredients of the offences alleged, the absence of independent witnesses further weakens the foundation of the case.

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The FIR was registered on the same day with a delay of about four hours. This Court is not inclined to treat the said delay, by itself, as fatal. However, when the prosecution is otherwise bereft of specific allegations and statutory particulars, the delay adds little strength to the prosecution case.

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The petitioners have alleged political motivation. This Court need not enter into the political colour of the prosecution. The issue can be decided on a narrower and firmer legal footing, namely, that the final report does not disclose the essential ingredients of the offences alleged. Criminal law cannot be set in motion merely because a political gathering was held. Unless the gathering travels into the realm of penal illegality, the criminal process cannot be sustained.

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In a petition to quash an FIR, the Court examines whether the allegations prima facie disclose a cognizable offence warranting investigation. In a petition to quash a final report, the scrutiny is slightly more concrete, because the investigation is complete and the prosecution must stand or fall on the materials collected.

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In the present case, the investigation has culminated in a final report. Therefore, this Court has examined not merely the FIR allegations, but the prosecution case as projected in the final report. Even after completion of investigation, the respondent has not

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collected materials satisfying the legal ingredients of the offences alleged. If, after full investigation, the final report remains vague, omnibus and ingredient-deficient, compelling the petitioners to face trial would amount to abuse of process of law.

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Epilogue:

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The criminal Court is not a forum for the mechanical conversion of every public gathering into a penal prosecution. Public order and public health are matters of importance, particularly during a pandemic. At the same time, penal law demands precision, particularity and proof of statutory ingredients.

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The State may regulate assemblies. It may prevent unlawful gatherings. It may prosecute real violations. But when the prosecution papers do not disclose the necessary ingredients of the offences alleged, the liberty of citizens cannot be made to depend upon a prolonged trial founded on vague accusations.

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The inherent power of this Court is meant precisely for such cases, where the continuation of proceedings would serve no legitimate prosecutorial purpose and would only burden the accused and the trial Court.

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In view of the foregoing discussion, this Court is of the considered view that the final report in C.C.No.441 of 2023 on the file of the learned Judicial Magistrate No.I, Karur, does not disclose the essential ingredients of the offences under Sections143, 341, 294(b), 353, 290, 285 and 269 IPC and Section 3 of the Epidemic Diseases Act, 1897, as against the petitioners.

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Accordingly, this Criminal Original Petition is allowed and the proceedings in C.C.No.441 of 2023 on the file of the learned Judicial Magistrate No.I, Karur, are hereby quashed insofar as the petitioners / Accused Nos.1, 2, 5 to 7 are concerned. Consequently, connected miscellaneous petitions are closed.

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NCC : Yes / No Index : Yes / No Internet : Yes/ No

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