Moly Peter vs State Of Kerala

Bechu Kurian Thomas, J

Petitioners challenge the final report in Crime No.743/2023 of Melukkavu Police Station which is now pending as C.C. No.445 of 2023 on the files of the Judicial First Class Magistrate's Court-I, Erattupetta.

Prosecution alleges that on 31.07.2023, the accused had, after forming themselves into an unlawful assembly and in order to protest against the illegal registration of crime against the leaders of the Congress political party, led a procession through the Thodupuzha-Erattupetta public road, shouting slogans against the police and the Government, creating disturbance and obstruction to the public and to the movement of vehicles and also caused disruption to traffic by proceeding through the public road without any permission and thereby committed the offences under sections 142, 143 and 283 read with section 149 of the Indian Penal Code, 1860, apart from section 6 of the Kerala Public Ways (Restriction of Assemblies and Procession) Act, 2011 (for short ‘the Public Ways Act’).

Sri. Joy George, the learned counsel for the petitioners contended that the offences alleged against the petitioners are not made out and that they have been falsely roped in as an accused. It was also submitted that the prosecution allegation itself refers to the protest being against false registration of crimes against the leaders of the Congress party and the present crime is another such instance. According to the learned counsel, even if the trial proceeds against the petitioners, there is no chance of any conviction as there are no independent occurrence witnesses and the investigation was conducted by the same officer who registered the crime. It was further alleged that the offence under section 6 of the Public Ways Act will not be attracted and it has been incorporated vexatiously. It was also urged that the right to take out a procession is a fundamental right and the same cannot be curtailed by initiating criminal action.

Sri. C.N. Prabhakaran, the learned Public Prosecutor on the other hand contended that the offences alleged against the petitioners are those that require to be appreciated after trial and therefore resort to the provisions of section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'BNSS') is not legally proper. He further submitted that the witnesses cited by the prosecution are sufficient to bring home the guilt of the accused and therefore a prosecution cannot be nipped off at this stage. It was further submitted that whether the petitioners had obtained any permission under the Public Ways Act, is a matter which will have to be decided during trial and that since they themselves do not have a case that there was any permission for them while taking out the procession, the offences are prima facie made out.

I have considered the rival contentions.

In a proceeding under section 528 of the BNSS, this Court cannot sift through the materials and arrive at a conclusion one way or the other. The defence of the accused is also not a reason to quash the proceedings as those are matters which will have to be established in the trial.

The contention of the petitioners that the evidence of the police is not sufficient to bring home the guilt of the accused though impressive at first blush, it is noticed that what is alleged is that the accused had, without any permission, taken a procession from the Panchayath Junction towards the Melukkavu Police Station through the public road shouting slogans against the police and the Government. Considering the nature of allegations, the police officers can, by themselves, be proper witnesses and it cannot be concluded at this juncture that they are not relevant witnesses. In the decision in Mukesh Singh v. State (Narcotic Branch of Delhi) [(2020) 10 SCC 120], the investigation by the Officer who was the informant has been held to be not barred under the Cr.P.C. Apart from the above, the relevancy of a witness or the evidentiary value of the statement of witnesses are matters to be adjudicated at the time of trial.

Section 143 IPC provides punishment for unlawful assembly. In the decision in Prakash Karat and Others v. State of Kerala and Another [2022 (6) KHC 531], it was observed by this Court that S.141 IPC uses the words 'criminal force' in three facets of the provision. It was also observed that an assembly of more than five persons gathered for a peaceful protest cannot fall within the term unlawful assembly. The right to protest peaceably is an essential ingredient of the fundamental right under Art.19(1)(a) and Art.19(1)(b) of the Constitution of India. An assembly of persons without arms or without use of criminal force or without any intent to commit an offence can only be a lawful assembly, which is not prohibited. Such an assembly is a formation in the exercise of the right to freedom of every citizen guaranteed under Art.19(1) of the Constitution. In the instant case, the prosecution has no case that any obstruction was caused by the unlawful assembly. Hence the offence under sections 142, 143 and 283 read with section 149 IPC are not made out.

As far as the offence under section 6 of the Public Ways Act is concerned, as rightly pointed out by the learned Public Prosecutor, petitioners have no case that they had obtained any permission from the competent authority under the said statute for taking out the procession. In the absence of any such permission, the offence under the Public Ways Act alleged against them are prima facie made out. Therefore it cannot be stated that the uncontroverted allegations in the final report do not make out the said offence.

The power to quash a criminal proceeding should be exercised with circumspection, and that too in exceptional cases. While exercising the inherent power, this Court ought not to embark upon an enquiry as to the reliability, genuineness, or otherwise of the allegations made in the FIR, or the final report. The Supreme Court had observed in Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397] which was reiterated in Mahendra K.C. v. State of Karnataka and Another [(2022) 2 SCC 129], that the power under section 482 should be exercised sparingly and cautiously. It was also observed that resort should be made to the inherent powers only when the Court is of the opinion that there will be a gross miscarriage of justice.

Recently, a three Judge Bench of the Supreme Court had, in Priyanka Jaiswal v. State of Jharkhand and Others [2024 SCC Online SC 685] observed that, at the time of examining the prayer for quashing of the criminal proceedings, the court exercising the inherent jurisdiction can neither undertake to conduct a mini-trial nor enter into an appreciation of evidence of the case. It was also held that the correctness or otherwise of the allegations made in the complaint cannot be examined on the touchstone of the probable defence that the accused may raise to stave off the prosecution.

In view of the above, since the offences under sections 142, 143 and 283 read with section 149 IPC are not made out, petitioners cannot be proceeded against for those offences. However, the offence under the Public Ways Act is made out and hence inclusion of the said offence cannot be interfered with.

In the result, the final report in C.C. No.445/2023 on the files of the Judicial First Class Magistrate's Court-I, Erattupetta arising out of Crime No.743/2023 of Melukkavu Police Station to the extent it incorporates the offences under sections 142, 143 and 283 read with section 149 IPC are quashed, while the final report in respect of the offence under section 6 of the Public Ways Act cannot be quashed. Ordered accordingly.

This Crl.MC is allowed in part.