1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:28.04.2011 CORAM: THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN Crl.O.P.(MD)No.5124 of 2011 and M.P.(MD)Nos.2 & 3 of 2011 1.M.K.Alagiri 2.P.M.Mannan 3.Regupathy 4.Thirugnanam ... Petitioners Vs. 1.The Inspector of Police, Keelavalavu Police Station, Madurai District, In Cr.No.43 of 2011. 2.Kannan ... Respondents (R-2 impleaded as per order made in M.P.No.3 of 2011 dated 28.04.2011.) PRAYER: This Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to call for the records pertaining to Crime No.43 of 2011 on the file of the respondent police and quash the same. For Petitioners : Mr.M.V.Venkataseshan for Mr.M.Suresh For R- 1 : Mr.Kumaresan State Public Prosecutor For R - 2 : Mr.K.Chellapandian Senior Counsel for Mr.P.Jothi & Mr.D.Muruganantham For De-facto Complainant : M/s.Hema Karthikeyan ORDER The petitioners filed this application to quash the F.I.R in Crime No.43 of 2011, on the file of the respondent police in which a case has been registered against the petitioners for the offence under Sections 143, 341, 332 and 188 I.P.C. 2. It is submitted by the learned counsel for the petitioners that for the time being he is not pressing the petition for the petitioners 2 to 4 and the case of the first petitioner may be considered on the submissions made by the learned counsel for the petitioners. 3. It is submitted that even on the allegations made in the F.I.R, no offence has been made out against the first petitioner for having committed the offence under Sections 143, 341, 332 and 188 I.P.C. https://hcservices.ecourts.gov.in/hcservices/ 2 4. Mr.M.V.Venkataseshan, learned counsel appearing for the petitioners has elaborated his argument by stating that the specific allegations made against the first petitioner was that he shouted at the de-facto complainant while the de-facto complainant was attempting to cover the activities of the petitioners through video and asked them to go away and he came forward to assault the de-facto complainant and according to the learned counsel for the petitioners, the words used in the complaint can only be construed as a gesture on the part of the first petitioner and it cannot be termed that the first petitioner had an intention of restraining the de-facto complainant from performing his duty by preventing the de-facto complainant in the performance of his duty and no order of the public servant has been violated by the first petitioner by his behaviour of shouting at the de-facto complainant. 5. He further submitted that the first petitioner is the Cabinet Minister of the Central Government and he has gone to the Temple for worshiping and he is aware of his constitutional position and status in life and he would not have indulged in activities as claimed by the de-facto complainant and relied upon the judgment in M.N.Ojha and Others Vs. Alok Kumar Srivastav and another reported in 2009 (9) SCC 682, wherein the Supreme Court has held that when the allegations made in the F.I.R or complaint are so absurd and inherently improbable on the basis of which no fair minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding, F.I.R can be quashed. 6. He further relied on Shakson Belthissor Vs. State of Kerala and another reported in (2009) 14 SCC 466, wherein the Supreme Court has held that in order to quash the F.I.R, the said power is exercised by the Court to prevent abuse of the process of law and Court but such a power could be exercised only when the complaint filed by the complainant or the charge- sheet filed by the police did not disclose any offence or when the said compliant is found to be frivolous, vexatious or oppressive. 7. He further submitted that even if the allegations are taken at face value no offence is made out against the first petitioner and even according to the allegations in the complaint, he only shouted at the de-facto complainant and other persons, who came there to record the proceedings through video and the behaviour of the first petitioner can only be taken as a gesture and it cannot be construed as an assault and therefore, no offence is made out. 8. Mr.Kumaresan, learned State Public Prosecutor submitted that so far as petitioners 2 to 4 are concerned, sufficient materials are available in the complaint and so far as the first petitioner is concerned, no sufficient material is available to make out a case against the first petitioner and he also relied upon the communication sent by the Chief Election Officer to the District Collector dated 09.04.2011, wherein, he has only stated that the occurrence took place in the presence of Honourable Central Minister Mr.M.K.Alagiri and he has not stated that the first petitioner had any role in the occurrence and his letter was sent on the basis of the reports he received from the officials including the de-facto complainant and therefore having regard to the letter of the Chief Election Officer, it can be presumed that no offence has been made out against the first petitioner. https://hcservices.ecourts.gov.in/hcservices/ 3 9. Mr.K.Hema Karthikeyan, learned counsel appearing for the de-facto complainant has stated that the de-facto complainant has filed an affidavit to that effect that he was forced to give such a complaint at the behest of the District Collector and he also stated in the affidavit that the petitioners came to the Temple and the Temple authorities resisted the de- facto complainant from entering into the Temple when they attempted to video record the visit of the petitioners herein to the Temple. 10. The learned counsel for the de-facto complainant further submitted that no such occurrence had taken place as stated in F.I.R and the de-facto complainant also has sent a letter dated 04.04.2011 to the Chief Election Officer stating that he was compelled to give such a statement to the Police at the instance of the District Collector. He further submitted that as the de-facto complainant has retracted his statement given earlier, the case of the first petitioner can be considered. 11. Mr.K.Chellapandian, learned senior counsel appearing for the second respondent filed a impleading petition in M.P.No.3 of 2011 to implead the second respondent in the proceedings and submitted that the petitioner in M.P.No.3 of 2011 was one of the eye witnesses and he was also examined as eye witnesses by the Police and therefore, he may be permitted to get impleaded in the proceedings to assist the Court in deciding the matter. 12. The learned senior counsel further submitted that necessary allegations are made in the F.I.R and at this stage, the Court has to take into consideration the averments in the F.I.R and the Court should not take into consideration the other statements made by the witnesses during investigation and the F.I.R discloses the cognizance of the offence against the particular person. He further submitted that in the F.I.R there is no need to mention all the information and F.I.R is not an encyclopedia and the Court should not interfere in the investigation when the investigation is in progress. He further submitted that offences alleged against the first petitioner are serious in nature and it is not personal to the de-facto complainant and the first petitioner as a public servant, gave the complaint and the offences are against society and hence it cannot be quashed on the basis of the retracted statement of the de-facto complainant. 13. He relied upon the judgment in D.Venkatasubramaniam and Others Vs. M.K.Mohan Krishnamachari reported in (2010) 1 Supreme Court Cases (Cri) 358, (2009) 10 Supreme Court Cases 488, Madan Mohan Abbot Vs. State of Punjab reported in (2008) 4 Supreme Court Cases 582, Divine Retreat Centre Vs. State of Kerala and others reported in (2008) 3 Supreme Court Cases 542 and M.Antony and others Vs. The State of Tamil Nadu and others reported in 2004-1-L.W. (Cri.) 27, in support of his contention. 14. The learned State Public Prosecutor Mr.Kumaresan objected to the impleading petition filed by the petitioner in M.P.No.3 of 2011 and submitted that the petition has been filed by the accused to quash the FIR and the person who sought to be impleaded is not the de-facto complainant and the complaint was given by one public servant and the petitioner who filed M.P.No.3 of 2011 was not affected by the behaviour of the petitioner as alleged in the complaint and therefore M.P.No.3 of 2011 cannot be allowed and it has to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 4 15. Heard the counsels appearing for the parties. 16. As the petitioner in M.P.No.3 of 2011, was one of the eye witnesses and the offences were committed against public servant and the public servant for reasons best known to him, resiled from his earlier statement, I am allowing the petition in M.P.No.3 of 2011. 17. In this case, the petition is filed to quash the FIR. It is an elementary principle that for quashing the FIR, the allegations made in the FIR have to be taken into consideration and when the allegations make out a case, the Court cannot interfere with the investigation process. Therefore, we will have to see whether necessary allegations are made against the first petitioner for having committed the offences as stated in the FIR. 18. To appreciate the contention, the FIR has to be read and it is as follows: "Iah. ehd; 01.04.2011 - ,d;;W khtl;lj; njh;jy; mjpfhhpapd; cj;jutpd;go mk;gyf;fhud;gl;o fpuhkj;jpy; mike;Js;s tpy;yof;fhuh; nfhtpypy; bts;sYhh; ehl;ilr; nrh;e;j mk;gyj;jhh;fsplk; thf;Fr; nrfhpg;gjw;fhf Rkhh; 50 fl;rp gpuKfh;fSld; gp/g/ 4.10 kzpf;F khz;g[kpF kj;jpa mikr;rh; K/f/mHfphp mth;fs; tUtjhf fpilj;j jftypd; mog;gilapy; ehDk;. njh;jy; gzpf;fhf epakpf;fg;gl;l tPonah nkd; jpU/fz;zd; kw;Wk; vdJ mYtyf gzpahsh;fs; fhty; JiwapdUld; nrh;e;J mikr;rh; tUifia gjpt[ bra;J bfhz;oUe;njhk;/ mg;nghJ mikr;rh; mth;fs; Vd; ? eP';fs; tPonah gjpt[ bra;J bfhz;oUf;fpw Ph ;fs; btspna ngh';fs; vd;W rj;jkpl;Lf; bfhz;L mog;gjw;F te;jhh; ." As per the FIR, the accused persons alleged to have committed offences under Sections 143, 341, 332 and 188 IPC. It is stated in the FIR that the de-facto complainant, who is admittedly a Government servant and one of the Assistant Election Officers has stated that he received information that the first petitioner, Honourable Central Minister Mr.M.K.Alagiri was going to a place along with 50 party men for canvassing votes. He went to that place along with Video man Mr.Kannan and official persons who were nominated to assist him and to take videograph of the proceedings and they were recording the arrival of the Honourable Minister. At that time the Honourable Minister objected to the recording of their arrival through video and shouted at them and asked them to go out of the place and also came to assault them. These are the allegations made against the first petitioner as stated in the FIR Therefore, we will have to see whether the allegations made against the first petitioner will constitute any offence as stated in the FIR. 19. Though it was contended by the learned counsel for the petitioner that the petitioners have gone to the place for worship in the temple, the version of the defence cannot be taken into consideration at this stage and we will have to go only by the statement made by the de-facto complainant in the complaint. As stated supra in the complaint, the de-facto complainant has stated that he received information that the Honourable Minister along with 50 party men was coming to that place for canvassing votes. It is also not in dispute that the de-facto complainant is one of the Election Officers and he has been directed to take video graphs of the canvassing act of persons like Honourable Minister during election and therefore, as per the https://hcservices.ecourts.gov.in/hcservices/ 5 order issued by his superior, he went to the spot to record the activities of the Honourable Minister and his party men while canvassing for their candidate. Therefore, we will have to see whether the behaviour of the first petitioner as disclosed in the FIR will amount to an offence under Sections 143, 341, 332 and 188 IPC. 20. To appreciate the contention we will have to see the provision of Section 188 which reads as follows:- "188.Disobedience to order duly promulgated by public servant.- Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation.- It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm." As per Section 188 IPC when the disobedience as stated in the first paragraph, causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, then such person is said to have committed an offence punishable under Section 188 IPC. The explanation to the Section also makes it clear that it is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is further stated in the explanation that it is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. 21. In this case it is not disputed that the de-facto complainant has been authorised and ordered to cover the proceedings of the Honourable Minister while he is doing election work and according to the statement of the de-facto complainant, he received information that the Honourable Minister along with 50 persons was going to the place for election canvassing. Therefore, the de-facto complainant went there to video graph the activities of the Honourable Minister as ordered by the Election Officer and it cannot be stated that the Honourable Minister is not aware of such order issued by the Election Officer. 22. The allegations against the first petitioner was that he shouted at the de-facto complainant and other persons who are covering the activities of the Honourable Minister and asked them to go away and attempted to https://hcservices.ecourts.gov.in/hcservices/ 6 assault them. Therefore the act of the first petitioner in shouting at the de-facto complainant and other persons to go out of the place and attempted to assault them squarely comes under the provisions of Section 188 IPC and as per explanation disobedience need not produce any harm and if the disobedience is likely to produce any harm, causes any annoyance, an offence is made out. Therefore, the act attributed against the first petitioner that he shouted at the de-facto complainant and asked him to go out and came to assault them which would definitely cause annoyance to the de-facto complainant and others while they were acting as per the direction of the Election Officer, hence in my opinion, the allegations made against the first petitioner constituted an offence under Section 188 IPC. 23. Further, as per Section 141 and the explanation given to that section, an assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. 24. In this case, it cannot be stated that the act of the Honourable Minister in going to the place with 50 persons will constitute an unlawful assembly, even when the Honourable Minister has gone there for election canvassing. But having regard to the subsequent conduct of the persons as stated in the FIR it can be presumed that the assembly which was lawful when it was assembled, subsequently became an unlawful assembly. 25. Further as per Section 332 IPC whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter to that person or any other public servant from discharging his duty, said to have committed the offence. 26. In this case though no overt-act is attributed against the first petitioner for having caused hurt to the de-facto complainant, the allegations are made that he behaved in such a manner with an intention and prevented the public servant from discharging his duty as a public servant Similarly, the public servant was also restrained by the first petitioner by shouting at them and asked them to go away and preventing them from video recording the incident. Hence, according to me the allegations stated in the FIR would prima facie constituted offence punishable under Sections 143, 341, 332 and 188 IPC. 27. Though it was argued by the learned counsel for the petitioner and the learned counsel for the de-facto complainant that the de-facto complainant had resiled from his statement and he has given a statement before the investigating officer that the complaint was given by him at the instance of the District Collector and no such incident had taken place as alleged in his complaint, at this stage, I am not inclined to take cognizance of the subsequent statement given by the de-facto complainant as the matter is under investigation and the respondent police has to investigate the case and during the investigation if the respondent police finds that statement of de-facto complainant given in the F.I.R was not voluntarily as now claimed by the de-facto complainant, it is open to the respondent to take further action in accordance with law. For the same reason, I cannot take into consideration the letter of the Election Officer to the District Collector dated 09.04.2011. At this stage, this Court cannot taken into consideration the statements of the de-facto complainant retracting the statement already given in the F.I.R. https://hcservices.ecourts.gov.in/hcservices/ 7 28. In this connection, it is pertinent to refer to the judgment in M.Antony and others Vs. The State of Tamil Nadu and others reported in 2004-1-L.W. (Cri.) 27, which is as follows: "9...........it is very difficult at this stage of investigation to classify as to what are the specific roles played by each and every accused particularly that of the petitioners and only on filing of the charge-sheet by the respondent, such specifications would come to be known and since it is the paramount duty of the respondent to find out the actual roles played by each and every accused and if no role has been played by anyone or some of these accused, it is upto the respondent Police to delete their names in the charge-sheet and register the case against only those who are really indulged in the offences contemplated therein. Therefore, at this stage, when the matter is under the threshold of investigation by the respondent, it is not only unsafe but also dangerous to say anything which is susceptible to affect the investigation and hence in these circumstances, the only conclusion that could be arrived at is that it is premature on the part of this Court to decide anything for or against and the petitioners shall wait till the investigation is over." 29. Therefore, I do not find any merit in the petition. Accordingly, this Criminal Original Petition is dismissed and M.P.No.3 of 2011 is allowed. However, I make it clear that the first respondent shall conduct investigation without being influenced by any of the observation made in this order and file final report on the basis of the statements and other evidence obtained during investigation. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(CO) /TRUE COPY/ Sub Assistant Registrar To 1.The Inspector of Police, Keelavalavu Police Station,Madurai District. 2.The Additional Public Prosecutor, Madurai Bench of the Madras High Court, Madurai. +1cc to Mr.M.Suresh, Advocate SR.No.16191 Crl.O.P.(MD).No.5124 of 2011 28.04.2011 ps PA/09.05.2011/7P/4C https://hcservices.ecourts.gov.in/hcservices/