PAULOSE Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is one among the accused in a pending case on the file of the Judicial First Class Magistrate Court-II, Aluva. He is being prosecuted as one among the accused in the above case in which 212 persons are arrayed as accused for the offences punishable under Sections 143, 145, 147, 283 and 188 read with 149 of the Indian Penal Code on a report filed by the Additional Sub Inspector of Police, Angamaly Police Station. Petitioner has filed the above petition to quash the criminal proceedings against him exercising the inherent powers of this Court under 482 of Code of Criminal Proceedings, for short the 'Code', contending that it is an abuse of process of the Court. Learned Counsel for petitioner inviting my attention to the Annexure III, copy of final report, and other annexures produced with the petition contended that none of the ingredients covered by any of the offences imputed has been made out by the prosecution to proceed against the accused named for the offences alleged in the case in connection with an agitation over the acquisition of large tracts of land in which marginalised sections of the society have their habitation, putting up residential buildings, there was blockage of public road and that gave raise to registration of the crime and later indictment of the persons named as accused in Annexure-III report, according to the counsel. When crime was registered only some leaders who had the agitation were named that too with an allegation that they organised a meeting in connection with the agitation. In fact, there is no whisper of any allegation that the assembly formed was unlawful or any direction was given by Police Officers concerned for dispersal of such assembly, is the further submission of counsel to contend that prosecution of petitioners for the offences imputed has no merits, and even if it is continued it may at least harass the persons proceeded against and cause loss of precious time of the Court. In a case of this nature even by-standers looking upon close to venue of meeting could also be roped in as members of the unlawful assembly is the further submission of the counsel. Having regard to the right to dissent and also protest, and more so even to participate in agitations peacefully, when issues affecting the society at large are involved the question of prosecuting those participating in such agitation has to be examined is the further submission of the counsel seeking for exercise of inherent powers of this Court to quash the proceedings of the case.

(2.) Annexure-I is the FIR in the crime which would disclose that a meeting was conducted in a public road and direction given by the Police Officer not to obstruct the traffic was not applied. That led to arrest of 212 persons from the spot. On that basis the crime was registered for offences punishable under Sections 143, 145, 147, 283 and 188 read with 149 of the Indian Penal Code. May be on the allegations imputed it could be stated that ingredients of the offence under Section 283 of the Indian Penal Code have been satisfied. However, the offence under Section 188 of the Indian Penal Code stand on a different footing. No offence there of can be taken cognizance by the Court otherwise than on a complaint filed by the public servant concerned. The bar under Section 195(1)(a) interdicts the Court from taking cognizance of such an offences otherwise than in a complaint as indicted as above. Even if some other penal offences committed, prosecution for the offences under Section 188 is permissible only on a complaint when its cognizance is specifically barred, otherwise than as provided under the above Section of the Code. Leaving that aspect, the question to be examined is whether the assembly was unlawful. What could be an unlawful assembly is defined under Section 141 of the Indian Penal Code. One of the five situations covered by that section has to be satisfied to hold that the assembly consisting of more than five persons was an unlawful assembly. Other than setting forth an allegation that a meeting was organised by a group of persons blocking traffic even in the final report filed, no whisper is made that it is so done to resist the execution of any law. True, it may be possible to infer that what was done was unlawful. But something more is required to prosecute a person as a member of an unlawful assembly. Then also the fact remains that the alleged blockage was in connection with some agitation led by a group of persons and is occurred years before. Those who were arrested, it is seen, are arrayed as accused when final report was filed. As rightly contended by learned counsel in a case of this nature even if prosecution steps are continued, in which more than 200 persons are arrayed as accused, after such lapse of time, it may not serve any purpose other than causing loss of precious time of the Court. I say so after looking into Annexure-III report which by itself does not satisfy the requirements necessary to establish ingredients of the offence under Section 283 of the Indian Penal Code as well. When such be the case, continuation of the criminal proceedings against the accused, all of them, in the aforesaid case is not called for.