A suo motu complaint by police under the Tamil Nadu Open Place Prevention Disfigurement Act, 1959, is unsustainable if not initiated by the property owner, occupier, or manager, and lacks supporting evidence such as the seizure of the disfiguring materials.

PRAYER : Petition filed under Section 528 of BNSS, 2023 to call for the records relating to the impugned final report filed in STC. No. 281 of 2016 on the file of the Learned Judicial Magistrate Court, Ottanchatram, Dindigul, concerned in Crime No. 153 of 2016 on the file of Special Sub Inspector of Police, Ottanchatram Police Station, Dindigul City, and insofar as the petitioners are concerned, quash the same and allow this criminal original petition on the file of this Court.

ORDER

The petitioner seeks for quash of the charge sheet in STC. No. 281 of 2016 on the file of the Learned Judicial Magistrate Court, Ottanchatram, Dindigul.

2. The case of the prosecution is that on 13.03.2016 at about 11:00 a.m., during the assembly elections, flags of various political parties were hoisted at the east exit side of Ottanchatram Bus Stand, in violation of the rules of election conduct that were in force at the time. Despite the respondent police instructed them to remove the flags, the petitioner, who was the Municipal secretary of political party along with seven other Secretaries of various political parties, did not abide by the Rules and refused to remove the flags. The respondent police suo motu lodged a complaint against the petitioner and others in Crime No. 153 of 2016 was registered under Section 4A(1)(b) of the Tamil Nadu Open Place Prevention Disfigurement Act, 1959 and the same culminated in laying charge sheet in STC. No. 281 of 2016 on the file of the Learned Judicial Magistrate Court, Ottanchatram, Dindigul for the same offence.

3. The learned counsel appearing for the petitioner categorically contended that similar cases have been dealt with by this Court in Crl.OP.No. 29104 of 2022 and Crl.OP(MD)No.6881 of 2022 and by order dated 28.11.2022 and 25.04.2022 respectively, those petitions were allowed. He further pointed out that the offence under Section 4A(1)(b) of the Tamil Nadu Open Place Prevention Disfigurement Act, 1959 will not be clearly made out and sought for indulgence of this Court.

4. The learned Government Advocate appearing for the respondent police submitted that despite being directed to remove the political flags, the accused have failed to do so. Therefore, the offence is clearly made out against the accused, and the learned Government Advocate consequently sought dismissal of this petition.

5. Heard the learned counsel appearing on either side and perused the materials available on record.

6. This Court, in Crl.OP.No.29104 of 2022 vide order dated 28.11.2022 has held as follows:-

“4. A perusal of records revealed that the respondent is not a competent person to lodge a complaint under Sections 4A(1a) and 4B of the Tamil Nadu Open Places (Prevention of Disfigurement) Act, 1959. It is relevant to extract the provisions of Section 4 of Tamil Nadu Open Places (Prevention of Disfigurement) Act, 1959 " 4. Penalty for unauthorised disfigurement by advertisements:- Whoever affixes to, or inscribes or exhibits on, any place open to public view any advertisement without the written consent of the owner or occupier or person in management of the property in which such place is situated shall be punished with imprisonment of either description for a term which may extend to three months or with fine which may extend to two hundred rupees, or with both".

5. Admittedly, the respondent is neither the owner or the occupier or the person in management of the alleged property nor the competent person to initiate criminal prosecution. Further, the entire complaint is vague since the respondent failed to satisfy about the place of