Making Remarks About CM, Pointing Failure To Fulfil Poll Promises Not Obscene Or Causing Enmity: Madras High Court

“Making certain remarks about the Chief Minister and pointed out his failure to fulfil the poll promises, cannot be by any stretch of imagination as obscene or said intent to create riot or it was an intentional insult to provoke breach of peace to attract Section 294(b) or Section 153 or Section 504 IPC. A expression of thought about the failure of the Chief Minister and his Government or the alleged misuse of the police machinery will not attract the offences under Sections 294(b), 153 and 504 IPC,” the court said.

Justice G Jayachandran held that per the records, it was clear that the state machinery had been misused as a tool by the ruling party to crush the voice of the opposition and thus the cases deserved to be quashed.

“Therefore, in the instant case, from the records, this court has no doubt, that the State Police machinery been mis-used as a tool by the ruling party member to crush the voice of opposition. Hence it is fit case for the Court to interfere in the investigation by applying the principle laid in "Bajanlal's case" and quash the complaints,” the court observed.

Shanmugam had approached the court to quash two FIRs registered against him in the Villupuram West Police Station and the proceedings pending in Villupuram Judicial Magistrate Court following these FIRs.

The allegation against Shanmugam was that on February 2022, he spoke at an agitation organised by the AIADMK party condemning the arrest of former minister D Jayakumar in which he had also made some comments against the CM and his policies.

The first FIR was registered based on a complaint by the Village Administrative Officer (VAO) for violating corona protocol. The FIR was registered against Shanmugam and 14 other office bearers for offences under Sections 143, 341, 269, 270, 290 of IPC for unlawful assembly, wrongful restraint, negligent act likely to spread infectious disease etc.

The second FIR was lodged after 7 months, for the same incident based on the complaint of one Shanmuga Sundaram, office bearer of the DMK Party alleging that the speech made during the protest was one in the nature of giving provocation with intent to cause riot and made with the intent to provoke breach of peace. Thus, FIR was lodged for offences under Sections 153A, 294(b), 504 and 505(1)(b) of IPC.

Shanmugam argued that the law did not permit the SHO to register multiple FIRs for the same occurrence unless it was a complaint and complaint at the counter. He added that without investigating the earlier FIR, the police investigated the subsequent FIR which was filed after 8 months and after consultation with party members and the police filed the final report without even referencing the first complaint. He added that the second FIR was an afterthought, filed on the instruction and instigation of the ruling party without any supporting evidence.

The State however argued that Shanmugam was a habitual offender who made provocative speeches. It was submitted that Shanmugam's speech would show that he had scant regard for decency and good manners. It was submitted that there was no illegality or maliciousness in the prosecution.

Regarding the first FIR, the court noted that the date of the incident was one year after lifting the lockdown and restrictions imposed under the COVID-19 protocol. The court also noted that the ingredients necessary to attract the alleged offences were absent in the case. Thus, the court opined that since the offences alleged in the FIR were not made out, Shanmugam's petition could be allowed to quash the FIR.

Regarding the second FIR, the court observed that the documents relied on by the prosecution did not disclose how the speech by Shanmugam was intended to incite or create a riotous situation. The court also underlined the trite law that multiple FIRs could not be filed for the same offence.

The court also observed that the IO's action of ignoring the former complaint and proceeding with the subsequent FIR which was registered for the same offence was grave and not sustainable legally.

The court thus noted that the prosecution was initiated to harass Shanmugam since the ruling party members were intolerant to comments made by him about the maladministration and misuse of power. Thus, the court allowed Shanmugam's petitions and quashed the proceedings.

Counsel for the Petitioner: Mr John Sathyan, Senior Counsel for Mr.M.Mohamed Riyaz

Counsel for the Respondent: Mr.K.M.D.Muhilan, Govt.Advocate (Crl. Side)

Citation: 2024 LiveLaw (Mad) 313

Case Title: C Ve Shanmugam v State

Case No: Crl.O.P.Nos.16043,16230 of 2023