IMPORTANT POINT
Prosecution for trivial acts, such as waving a black flag, does not constitute an offence under IPC sections when no substantial harm or defamation is established.

ORDER :

(BECHU KURIAN THOMAS, J.)

Protests are essential for an effective democracy as they are the external manifestations of democratic sentience. Peaceful protests aid in strengthening such governance rather than weakening it. Petitioners marked their protests by waving black flags on a matter that they perceived to be unjust. The mode of protests adopted by the petitioners has entangled them in a criminal prosecution. They challenge the prosecution initiated against them in this proceeding under section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

2. Petitioners are accused 1 to 3 in C.C.No.403 of 2020 on the files of the Judicial First Class Magistrate Court-III, North Paravur. The prosecution alleges that the accused had, on 09.04.2017, in violation of the orders of the Hon’ble High Court of Kerala and with the intention to defame the Chief Minister, waved a black flag at the convoy of the Chief Minister, and when the police personnel tried to restrain them from proceeding towards the convoy, the accused used criminal force by pushing the police and thereby committed the offences under sections 283, 188, 500 and 353 r/w section 34 of the Indian Penal Code, 1860 (for short 'IPC').

3. Sri. M. Vivek, the learned counsel for the petitioners, contended that the prosecution allegations do not make out any of the offences alleged. It was submitted that for taking cognizance of the offence under Section 188 IPC, the authority who issued the order must file the complaint as stipulated in Section 195(2) Cr.P.C. It was also submitted that the offence of defamation cannot be initiated on the basis of a police report, and therefore, those two sections are not attracted at all. It was further submitted that as uncontroverted allegations do not indicate that any obstruction was caused in any public way, Section 283 IPC is also not attracted. Further, according to the learned Counsel, Section 353 IPC is also not attracted, as the accused did not use any force, much less any criminal force, and that the duty of the Police Officers was never intercepted, as is evident from the prosecution allegations itself. The learned Counsel submitted that no injury was caused to any police officer, and their duty was not at all deterred even according to the final report and the provision has been included without any basis. According to the learned counsel, proceedings against the petitioners are liable to be quashed by exercising the inherent powers of this Court.

4. Sri. C.N. Prabhkaran, the learned Public Prosecutor, on the other hand, submitted that the contentions raised are all matters which require to be considered after evidence is adduced, and it is not proper for this Court to interfere in exercise of the inherent jurisdiction. The learned Public Prosecutor also pointed out that the specific statements of the witnesses including the independent witnesses indicate that the Police Officers while attempting to prevent obstruction being caused to the convoy of the Chief Minister, were pushed at and their uniforms were pulled, indicating the use of criminal force to deter them from discharging their duty. It was further submitted that even if there was no assault, still use of criminal force being evident from the allegations, the offence under section 353 IPC is attracted.

5. I have considered the rival contentions.

6. Petitioners are facing prosecution for the offences under sections 188, 500, 283 and 353 IPC. Section 188 IPC deals with disobedience to an order duly promulgated by a public servant. Cognizance for the offence under section 188 IPC can be taken only as provided under section 195(1)(a)(ii) Cr.P.C. As per the latter provision, no court shall take cognizance of the offence under section 188 IPC unless the complaint is filed in writing by the public servant who issued the order or by a person who is administratively subordinate to such public servant. In the instant case, petitioners are alleged to have violated an order issue