The court found that peaceful protests are constitutionally protected and that charges of unlawful assembly and disobedience were unsustainable due to lack of evidence for assault or criminal force.

ORDER

The petitioners are accused Nos. 27 and 1 in Crime No.21 of 2018 of Sannidhanam Police Station, which is now pending as S.T.No.435 of 2019 before the Gramanyayalaya, Ranni. The offences alleged against the petitioners are under Sections 143, 144, 147, 353, and 188, read with Section 149 IPC .

2. The prosecution case is that the accused persons, along with several other persons, formed an unlawful assembly near Sabarimala Sannidhanam at 10:30 P.M on 18.11.2018 with the intent to protest against the judgment of the Hon’ble Supreme Court permitting entry of women to the holy shrine. It was further alleged that the accused persons sat in protest on the concrete staircases and pathway near the Sannidhanam Police Station, chanting religious/spiritual slogans hailing Lord Ayyappa and thereby disobeyed the prohibitory orders passed by the District Collector. Annexure-A is the FIR and Annexure-B is the final report submitted by the Police. This Crl.M.C. is filed for quashing all further proceedings pursuant to Annexure-B final report as against the petitioners.

3. Heard Sri.V.Sajith Kumar, learned counsel for the petitioners and Sri.C.S.Hrithwik, learned Public Prosecutor for the State.

4. One of the crucial contentions raised by the petitioners is that, as far as the offence under Section 188 of IPC is concerned, under no circumstances, cognizance can be taken by the learned Magistrate based on the Police report submitted under Section 173 (2) Cr.P.C. According to him, in the light of the specific prohibition contained under Section 195 (1) (b) of Cr.P.C., the cognizance taken for the said offence is unsustainable. On perusal of the records, it is seen that the learned Magistrate has taken cognizance of the offence punishable under Section 188 . As rightly pointed out by the learned counsel for the petitioner, in the light of the statutory stipulation contemplated under Section 195 (1)(a) of Cr.P.C, no cognizance can be taken by a court for the offence punishable under Section 188 , except on a complaint submitted by a public servant whose orders are allegedly violated by the accused persons or the public servant to whom he is administratively subordinate. In this case, the specific allegation against the accused persons is that the activities committed by the petitioners and other accused were in violation of the prohibitory orders passed by the District Magistrate. Hence, it was not possible for the court to take cognizance based on the final report submitted by the Police under Section 173 (2) Cr.P.C. Therefore, to the extent the prosecution based on cognizance taken by the learned Magistrate for the offence under Section 188 is legally unsustainable and liable to be quashed.

5. The other offence is under Section 353 IPC . The aforesaid provision reads as follows:

“353. Assault or criminal force to deter public servant from discharge of his duty.—Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

6. In order to attract the aforesaid provision, the accused persons must have assaulted or used criminal force on any person being a public servant who is in his duty as a public servant. However, going by the allegations in the final report submitted in this case, it can be seen