Point of Law: When the allegations do not satisfy the ingredients of unlawful assembly, the offences under sections 143, 147 and 149 IPC cannot be attracted.

ORDER :

The Association of South East Asian Nations (ASEAN) was formed between ten nations of South East Asia. On 13.08.2009, India entered into a trade agreement with the ASEAN countries. The signing of the agreement was not well received by a few of the political parties. In a bid to compel the Union Government to withdraw from the ASEAN free trade agreement, the Communist Party of India (Marxist) decided to form a State wide human chain in Kerala to be lined up on the sides of the National Highway. The human chain is alleged to have been created over a distance of 500 kilometres, from Kasaragode in the north to Thiruvananthapuram in the south.

2. An Advocate practising in the courts at Thiruvananthapuram preferred a private complaint before the Judicial First Class Magistrate Court, Thiruvananthapuram alleging that the human chain formed on 2nd October 2009 between 5 p.m. to 8 p.m. at the behest of accused 1 to 12 and 10,000 other identifiable persons resulted in the commission of offences under sections 143, 147, 149 and 283 of the Indian Penal Code,1860 apart from section 38 r/w section 52 of the Kerala Police Act, 1960.

3. The complaint also refers to another incident on the same day at 3 p.m., when the Sub Inspector of Police attached to the Museum Police Station, Thiruvananthapuram, noticed ten young men constructing an open stage on the road and footpath in a manner causing obstruction to the right of way of the public. According to the complainant, despite the police commanding them to desist from the construction, the young men proceeded to set up an open platform and enabled accused 1 to 12 to address the party workers as part of the human chain. The complaint further alleged that though Crime No.626 of 2009 was registered against ten identifiable persons, no steps were initiated to arrest the accused or to remove the stage constructed and that the acts of those accused constituted a violation of the decisions of this Court in Peoples Council for Social Justice v. State of Kerala (1997 (2) KLT 301) as well as Kerala Vyapari Vyavasayi Ekopana Samithi v. State of Kerala (2004 (2) KLT 857). On the above allegations, the complainant sought to prosecute the accused.

4. The sworn statement of the complainant was taken, and his witnesses were also examined. Thereafter, the learned Magistrate took cognizance of the offence as S.T. No.4129 of 2012 and issued process to the accused. Later, by order dated 14.11.2012, the case was transferred to the Chief Judicial Magistrate’s Court, Thiruvananthapuram and renumbered as C.C. No.1530 of 2012.

5. Petitioners are accused 1 to 12. All of them claim to be leaders of the Communist Party of India (Marxist). They have approached this Court under section 482 of Cr.P.C, alleging that the complaint is filed with malafide intentions and for oblique motives and that the offences alleged are not made out.

6. Sri. Gilbert George Correya, the learned counsel for the petitioners contended that the accused, which include the present Chief Minister of Kerala, the former General Secretary of the Communist Party of India (Marxist), as well as the former Chief Minister of Kerala and other senior leaders of the Communist Party of India, have never acted contrary to law. It was submitted that no one had come forward with any personal grievance or inconvenience or even prejudice that was caused on account of the human chain programme organised by the Communist Party of India (Marxist). The learned counsel submitted that the human chain was formed in exercise of their right under Article 19 of the Constitution of India as a measure of showing their protest against an act that they presumed to be contrary to their beliefs. According to the learned counsel, the offences alleged are not made out against the petitioners, and hence the private complaint is liable to be quashed.

7. Sri.T.A. Shaji, the learned Director General of Prosecution, assisted by Sri. K. A Noushad, the learned Public Prosecutor submitted tha