The right to peaceful assembly and protest is protected under Articles 19(1)(a) and 19(1)(b), and charges under IPC Section 188 cannot stand without a written complaint from a public servant.

O R D E R

The Criminal Miscellaneous Case is filed by the 6^th accused in C.C.No.1004 of 2021 on the file of the Court of the Judicial First-Class Magistrate-VIII, Ernakulam (for short 'Trial Court'), to quash the above proceedings. The case has originated from Crime No.1541 of 2018 registered by the Kadavanthra Police Station, alleging that the accused persons have committed the offences punishable under Sections 143 , 147, 188 and 283 r/w Section 149 of the Indian Penal Code (‘ IPC ’, for brevity).

2. The prosecution allegation in Annexure II final report, in a nutshell, is as follows:

“On 18.11.2018 at 11.30 hours, the accused persons, in prosecution of their common intention, had formed themselves into an unlawful assembly and squatted on the road at Vyttila Junction, protesting against the arrest of a political leader. The accused persons also obstructed the movement of the pedestrians and vehicles through the public road”.

3. I have heard Sri. R.V. Sreejith, the learned counsel for the petitioner and Sri. C.S. Hrithwik, the learned Public Prosecutor.

4. The learned counsel for the petitioner strenuously argues that, even if the allegations in the final report are taken on their face value, the same will not attract the offences alleged against the petitioner. He submits that an offence under Section 188 of the IPC can only be taken cognizance of, on a written complaint filed by the public servant, as envisaged under Section 195 of the Code of Criminal Procedure (Cr. P.C.). He places reliance on the decision of this Court in Poulose K.K. v. State of Kerala [ 2013 (4) KHC 539 ] to canvass the above contention. He further contends that the accused were only holding a peaceful protest on the public road, without causing any obstruction to the vehicles or the pedestrians. This Court in Prakash Karat v. State of Kerala [ 2022 (5) KLT 907 ] has emphatically held that the right to protest peacefully is a fundamental right guaranteed under Articles 19(1)(a) and (b) of the Constitution of India. Merely because persons assembled without arms or without criminal force, and without any intention to commit an offence, the same cannot be said to be an unlawful assembly. Even if the petitioner withstands the trial, it will not result in her conviction. Hence, the entire proceedings against the petitioner may be quashed.

5. The learned Public Prosecutor opposes the Crl.M.C. He submits that if the allegations in the FIR and final report are taken on their face value, they would constitute the offences alleged against the petitioner. This Court may not embark upon a mini-trial and quash the proceedings against the petitioner. The contentions raised in the Crl. M.C are matters to be decided after trial. The Crl. M.C is meritless and hence may be dismissed.

6. The prosecution allegation against the petitioner, in essence, is that she and 10 other persons had squatted on a public road and blocked the free movement of the pedestrians and vehicles through a public road.

7. In view of the allegation that the petitioner has committed an offence under Section 188 IPC , it is necessary to refer to Section 195 (a) of the Cr.P.C., which reads thus:

“195. No Court shall take cognizance— (a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or (ii) of any abetment of, attempt to commit, such offence, or (iii) of any criminal conspiracy to commit, such offence, except on the co