Leading Peaceful, Non-Violent Procession Is A Fundamental Right: Kerala High Court Quashes Criminal Proceedings Against Ex-MLA

Leading peaceful and non violent procession is a fundamental right under Article 19(1)(a) and 19(1)(b) of the Constitution of India, the Kerala High Court observed while quashing criminal proceedings against former MLA Dominic Presentation.

A criminal case offence under Secs 143, 147, 283 r/w 149 of the Indian Penal Code was registered against the former legislator in 2018 for causing obstruction to the general public and vehicles by conducting the procession in allegiance to the human rights protection procession led by V.M.Sudheeran KPCC president in protest of arrest of two 'dalith' girls in Thalssery.  By filing a petition under Section 482 CrPC before the High Court, the Ex-MLA contended that holding a peaceful and orderly demonstration by way of protest is an exercise of fundamental rights guaranteed under Article 19(1)(a) and 19(1)(b) of the Constitution of India.

Taking note of the prosecution case, the court noted that there is no whisper either in the FIR or the final report that there was any show of criminal force, any resistance to execution of any law or commission of any criminal offence etc. "Fourth clause of S.141 though states about deprivation of the enjoyment of right of way, it should also be by means of criminal force. In other words exercise of some criminal force or illegal act is a condition precedent to attract the ingredients of unlawful assembly. So prima facie from the final report and the FIR there is nothing to attract the offence under any of the limbs of Sec.141 IPC so as to constitute an unlawful assembly.", Justice MR Anitha observed.

The judge also noted that there is no clear and cogent material to disclose that obstruction was caused to any person in the public way due to the alleged procession led at the instance of the petitioner and others and therefore the offence under Sec. 283 IPC prima facie is also not attracted. Regarding the contention that the acts of demonstration is protected under Article 19, the judge observed:

"Some meetings may be peaceful in the beginning and subsequently may turn violent. So a blanket protection cannot be given to all processions or marches under the guise of freedom of speech and expression and peaceful assembly under Article 19(1)(a) and (1)(b) of the Constitution. Each case has to be examined based on its own facts. In this particular case as has been rightly pointed by the learned counsel for the petitioner the statements produced along with the charge of the CPO and SCPO or that of the independent witness would not give any indication of the procession turned disorderly. The only statement of the witnesses is that the procession caused obstruction to the vehicles and the pedestrians. Admittedly by the prosecution none of the leaders or workers were arrested and removed. The only allegation is that until the procession was over the traffic was controlled. So in the particular fact situation of this case there is nothing to show from the records produced that the procession led had become disorderly or noisy. In other words it appears to be a peaceful and non violent procession led by the petitioner and others. Hence their acts are well protected under Article 19(1)(a) and 19(1)(b) of the Constitution of India."

CASE: DOMINIC PRESENTATION vs. STATE OF KERALA [ Crl.MC.No.7029 OF 2018]

CORAM: JUSTICE MR ANITHA

COUNSEL: ADVOCATES K.L.JOSEPH, .P.SAREENA GEORGE

Click here to Read/Download Order

Read Order