Crl.O.P.(MD).No.

563 of 2019

THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 16.08.2023

CORAM:

THE HONOURABLE MR. JUSTICE P.DHANABAL

Crl.O.P.(MD).No.563 of 2019
and
Crl.M.P(MD) Nos.271 and 272 of 2019

Lois Sophia @ Layis Shobia ... Petitioner

Vs.

1. The Inspector of Police

Pudukottai Police Station,
Thoothukudi District.

2. Subramanian
Director
Thoothukudi Airport,
Thoothukudi
(R2 suomotu impleaded as per the order of
this Court in the place of existing respondent
dated 14.03.2022)

3. K.Annamalai
(R3 impleaded as per the order of the Court
dated 09.02.2023 in Crl.M.P(MD) No.9524
of 2023) ..Respondents

PRAYER: This Criminal Original Petition has been filed under Section
482 of Criminal Procedure Code, to call for the records pertaining to the
case in S.T.C. No.324 of 2018 on the file of the learned Judicial
Magistrate No.III, Thoothukudi and quash the same.

For Petitioner : Mr.R.Diwakaran

For R-1 :Mr.R.M.Anbunithi
Additional Public Prosecutor
For R-2 :Mr.C.Godwin
For R-3 :Mr.K.R.Laxman

https://www.mhc.tn.gov.in/judis
1/17
 Crl.O.P.(MD).No.563 of 2019

ORDER

This Criminal Original Petition has been filed to quash the

proceedings in S.T.C. No.324 of 2018 on the file of the learned Judicial

Magistrate No.III, Thoothukudi.

2. According to the petitioner based on the complaint given by

the second respondent the first respondent registered a case in Crime

No.285 of 2018 for the offences under Sections 290 of IPC and 75(1)(c)

of Tamil Nadu City Police Act,1888. Thereafter the case has been

investigated and charge sheet was filed for the offences under Sections

290 of IPC and 75(1)(c) of Tamil Nadu City Police Act,1888. According

to the prosecution case the petitioner and the second respondent

travelled by Indigo flight between Chennai to Thoothukudi on

03.09.2018. While the passengers were alighting from the flight, the

petitioner herein shouted at the second respondent stating that “ Paasisa

Ba.Ja.Ka. Aatchi Ozhiga”. The second respondent preferred complaint to

the Airport Manager who in turn preferred complaint with the first

respondent. The first respondent registered First Information Report in

Crime No.285 of 2018. The alleged act of the petitioner could not be

construed as offending since there was no complaint against her by the

Captain or the other Crew members or any other passenger. The

allegations levelled in the complaint preferred by the second respondent

https://www.mhc.tn.gov.in/judis
2/17
 Crl.O.P.(MD).No.563 of 2019

stated that she has doubts over the back ground of the petitioner and

does not even have a whisper about any nuisance caused to the second

respondent or to any other person. The allegations do not constitute any

offence under Section 290 of IPC or Section 75(1)(c) of the Tamil Nadu

City Police Act, even if taken on its face value and hence the charge sheet

based on such a complaint ought to be quashed. The petitioner has

chosen to vent her anger against the act of the state of killing 13 persons

by firing at them at Thoothukudi by raising the slogan alleged to have

caused nuisance to the defacto complainant. The same could not be

treated to have caused injury, danger, obstruction or annoyance to the

complainant herein. Even the alleged overt act taken on its face value

and accepted in their entirety do not prima facie constitute any offence

or make out a case against the petitioner. The First Information Report

has been registered for the offences under Sections 290 of IPC and

Section 75(1)(c) of Tamil Nadu City Police Act which are non cognizable

and no permission obtained from the learned Magistrate and procedure

laid down under Section 155 of Cr.P.C have not been followed. Therefore

the charge sheet in S.T.C. No.324 of 2018 is liable to be quashed.

3. No counter was filed by the respondents.

4. In this case intervenor filed intervening petition in

Crl.M.P(MD) No.9524 of 2022 stating that entire criminal complaint rests

https://www.mhc.tn.gov.in/judis
3/17
 Crl.O.P.(MD).No.563 of 2019

upon the complaint given by the then State President of Tamil Nadu BJP,

wherein, if and only the present State President of Tamil Nadu, BJP, the

petitioner herein to defend the grounds raised in the present quash

petition, the ends of justice could be met and since the slogans is as

against the ruling party and he being the member of the party has filed

this petition but on perusal of the records it is seen that permission was

already granted by this Court and he was impleaded as third respondent

in this case. The original complainant was added as second respondent in

this case and thereafter the name of the second respondent was deleted

and the Airport authority name was included as second respondent.

5. The learned counsel appearing for the petitioner would

contend that according to the complaint, First Information Report has

been registered as against the petitioner for the offences under Sections

290 of IPC and Section 75(1)(c) of Tamil Nadu City Police Act and both

are non cognizable offences and the procedure under Section 155 of

Cr.P.C has not been followed and no permission was obtained from the

learned Magistrate and the complaint was not referred to the learned

Magistrate, hence there are procedural violations. Even according to the

allegations of the complaint no offence is made out as against this

petitioner and this petitioner raising slogans is not offence and in this

case the defacto complainant is the Airport authority and the third

respondent has no locus standi to object this petition. The learned

https://www.mhc.tn.gov.in/judis
4/17
 Crl.O.P.(MD).No.563 of 2019

counsel appearing for the petitioner has also produced the judgments of

the Hon'ble Apex Court in the case of Keshav Lal Thakur .vs. State of

Bihar and the order passed by this Court in the case of Arumugam .vs.

The Inspector of Police, Kalapet Police Station, Puducherry

District in Crl.O.P(MD) No.6609 of 2021.

6. The learned counsel appearing for the intervenor would

contend that the police failed to register case under the Suppression of

Unlawful Acts against Safety of Civil Aviation Act, 1982, but , they

registered case under Sections 290 of IPC and Section 75(1)(c) of Tamil

Nadu City Police Act and they failed to invoke the provision of Section 3

of the Suppression of Unlawful Acts against Safety of Civil Aviation Act,

1982. Therefore the petition for quashing the charge sheet is liable to be

dismissed. Even according to the First Information Report offences

under Sections 290 of IPC and Section 75(1)(c) of Tamil Nadu City Police

Act and also section 505(1)(b) of IPC are also registered. Since section

505(1)(b) of IPC is cognizable offence there is no irregularity in

conducting investigation and filing of final report for the offence under

Section 290 of IPC and section 75(1)(c) of the Tamil Nadu City Police Act

as per section 155(4) of Cr.P.C.

7. The learned Additional Public Prosecutor appearing for the

first respondent would contend that as far as section 75(1)(c) of Tamil

https://www.mhc.tn.gov.in/judis
5/17
 Crl.O.P.(MD).No.563 of 2019

Nadu City Police Act is concerned Thoothkudi District is not notified,

however based on the complaint given by the second respondent, First

Information Report has been registered and the case has been

investigated and after investigation final report has been filed.

8. Already this Court has directed the Director of Civil Aviation

to assist the Court in an effective manner and the learned counsel

appearing for the Director of Civil Aviation also heard by this Court.

9. Heard both sides and perused the materials available on

record.

10. On perusal of the record it is observed that the complaint

has been lodged by the Airport authority, based on the complaint given

by the second respondent i.e. former State President of BJP, Tamil Nadu.

Then the first respondent registered case in Crime No.285 of 2018 for

the offences under Sections 290 of IPC and 75(1)(c) of Tamil Nadu City

Police Act,1888. On perusal of the First Information Report, there is an

inclusion of Section 505(1)(b) of IPC in the First Information Report by

hand written. Other offences are in the printed form but the offence

under Section 505(1)(b) of IPC has been inserted by handwritten.

However the learned counsel for the petitioner brought to the knowledge

of the Court that at the time of remand itself the learned Magistrate

https://www.mhc.tn.gov.in/judis
6/17
 Crl.O.P.(MD).No.563 of 2019

refused to remand the petitioner for the offence under Section 505(1)(b)

of IPC and remanded the petitioner for the offences under Sections 290

of IPC and 75(1)(c) of Tamil Nadu City Police Act,1888 and the same

was also admitted by the counsel for the respondent. On seeing the

complaint it seen that the petitioner shouted as “ Paasisa Ba.Ja.Ka. Aatchi

Ozhiga”, i.e., Fascist B.J.P. down down. These words alone do not

constitute any offence.

11. The learned counsel appearing for the intervenor brought to

the knowledge of this Court by referring Section 3 of the Suppression of

Unlawful Acts against Safety of Civil Aviation Act, 1982. It will not be

applicable to the present facts of the case and mere uttering of words

will not attract the provisions of the Act, which reads as follows:

3. Offence of committing violence on board an aircraft in

flight, etc.—
(1) Whoever unlawfully and intentionally—
(a) commits an act of violence against a person on board an
aircraft in flight which is likely to endanger the safety of such aircraft; or
(b) destroys an aircraft in service or causes damage to such
aircraft in such a manner as to render it incapable of flight or which is
likely to endanger its safety in flight; or
(c) places or causes to be placed on an aircraft in service, by
any means whatsoever, a device or substance which is likely to destroy
that aircraft, or to cause damage to it which renders it incapable of
flight, or to cause damage to it which is likely to endanger its safety in
flight; or
(d) communicates such information which he knows to be
false so as to endanger the safety of an aircraft in flight, shall be
punished with imprisonment for life and shall also be liable to fine.

https://www.mhc.tn.gov.in/judis
7/17
 Crl.O.P.(MD).No.563 of 2019

(2) Whoever attempts to commit, or abets the commission of, any offence
under sub-section (1) shall also be deemed to be have committed such
offence and shall be punished with the punishment provided for such
offence.

12. In this Case no any violence committed by the petitioner and

mere uttering of the said word is not likely to endanger the safety of any

aircraft and the complaint was not given by the aircraft alleging to

attract the said provision. Even according to the complaint, the sections

mentioned in the First Information Report are non cognizable offence

and the procedures laid down under Section 155 of Cr.P.C have not been

followed in this case. Once the magistrate rejected the remand for the

offence under Section 505(1)(b) of I.P.C, it is the duty of the police to

follow the procedure under Section 155 of Cr.P.C., which reads as

follows:

“155. Information as to non-cognizable cases and

investigation of such cases:

(1) When information is given to an officer in charge of

a police station of the commission within the limits of such station
of a non-cognizable offence, he shall enter or cause to be entered
the substance of the information in a book to be kept by such
officer in such form as the State Government may prescribe in this
behalf, and refer, the informant to the Magistrate
(2) No police officer shall investigate a non-cognizable
case without the order of a Magistrate having power to try such
case or commit the case for trial
(3) Any police officer receiving such order may exercise
the same powers in respect of the investigation (except the power

https://www.mhc.tn.gov.in/judis
8/17
 Crl.O.P.(MD).No.563 of 2019

to arrest without warrant) as an officer in charge of a police station

may exercise in a cognizable case
(4) Where a case relates to two or more offences of
which at least one is cognizable, the case shall be deemed to be a
cognizable case, notwithstanding that the other offences are
noncognizable”

13. On careful reading of the aforesaid provision it is clear that

the informant has to refer to the Magistrate and no police can investigate

a non cognizable offence without the order of a Magistrate having

power to try such case or commit the case for trial under Section 155(2)

of the Act. In this case the police have not followed the above procedures.

14. The learned counsel appearing for the petitioner relied on

the following judgments:

i) Keshav Lal Thakur .vs. State of Bihar,wherein it is held as

follows:

“We need not go into the question whether in the facts of the
instant case the above view of the High Court is proper or not for the
impugned proceeding has got to be quashed as neither the police was
entitled to investigate into the offence in question nor the Chief Judicial
Magistrate to take cognizance upon the report submitted on completion
of such investigation. On the own showing of the police, the offence
underSection 31of the Act is non cognizable and therefore the police
could not have registered a case for such an offence under Section
154(2) Dr. P.C. of course, the police is entitled to investigate into a non-
cognizable offence pursuant to an order of a competent Magistrate
under Section 155(2) Dr. P.C. but, admittedly, no such order was passed
in the instant case. That necessarily means, that neither the police could
investigate into the offence in question nor submit a report on which the

https://www.mhc.tn.gov.in/judis
9/17
 Crl.O.P.(MD).No.563 of 2019

question of taking cognizance could have arisen. While on this point, it

may be mentioned that in view of the proviso to Section 2(d) Dr. P.C.,
which defines 'complaint', the police is entitled to submit, after
investigation, a report a relating to a non-cognizable offence in which
case such a report is to be treated as a 'complaint' of the police officer
concerned, but that explanation will not be available to the prosecution
here as that related to a case where the police initiates investigation
into a cognizable offence - unlike the present one - but ultimately finds
that only a non-cognizable offence has been made out.

ii) Arumugam .vs. The Inspector of Police, Kalapet Police

Station, Puducherry District in Crl.O.P(MD) No.6609 of 2021,

wherein it is held as follows:

“5. Section 155 (1) of Cr.P.C makes it very clear that where
information is received by an officer~in~charge of a Police station
regarding the commission of a non~cognizable offence, he/she shall refer
the informant to the learned Magistrate. There is a difference between
referring the informant to the learned Magistrate and seeking permission
from the learned Magistrate directly by the Investigating Officer.
The Legislative mandate has to be followed scrupulously. This Court in
similar circumstances, had held in A. Balarkrishnan vs. The Inspector of
Police dated 28.09.2020 that officer~in~charge of Police Station has to
refer the informant to the learned Magistrate and not just the
information. The relevant portion is extracted herein for better
understanding:
?9. In the above judgment the Section 155(i) and (ii)
of Cr.P.C., clearly mandates that
the Officer~in~Charge of the police station has to refer the
informant and not the information alone to the Magistrate
concerned. In the case on hand, neither the information
regarding the commission of non~cognizable offence recorded
in the register as mandated by the above said provision nor
informant was referred to the concerned Magistrate. It is clear
violation of the provision of Section 155 (i) and (ii) of Cr.P.C.
Therefore, the FIR impugned in this petition cannot be sustained
and it is liable to be quashed.?
https://www.mhc.tn.gov.in/judis
10/17
 Crl.O.P.(MD).No.563 of 2019

6. The reading of Section 155(1) of Cr.P.C., would make it

very clear that the Court mandates the Police Officer to refer the
informant to the learned Magistrate. The reason is not far to seek.
The learned Magistrate may, on such reference, either take the complaint
on file or pass an order directing the Police to investigate the case.
The Police officer cannot seek permission or an order from the learned
Magistrate without referring the informant to the learned Magistrate.
Therefore, the procedure adopted by the Police in seeking
permission/order from the learned Magistrate to investigate
non~cognizable offences without referring the informant and the orders
passed by the learned Magistrate on such requests are against the
provisions of the code. The procedure can be summarised as follows:
(a) If the Police officer~in~charge of Police Station receives a
complaint relating to non~cognizable offences, he/she shall refer the
informant to the Magistrate. It is needless to say that the learned
Magistrate can either take the complaint on file or direct an
investigation by the Police.
(b) Section 155(2) Cr.P.C., provides that an order has to be
passed by the learned Magistrate directing the Police to investigate and
not mere permission. Hence, the learned Magistrate has to pass an order
supported by reasons for allowing the Police to investigate.
Cryptic orders such as “permitted” would not satisfy the provisions of the
code.
(c) The learned Magistrate shall not pass an order on an
application by the Police for investigating non~cognizable offences
without the informant being referred to him/her.

15. On careful reading of the said judgment it is clear that any

investigation done in respect of non cognizable offence without following

the procedure under Section 155 of Cr.P.C would render the final report

illegal.

https://www.mhc.tn.gov.in/judis
11/17
 Crl.O.P.(MD).No.563 of 2019

16. In the case on hand also the First Information Report has

been registered under Section 290 of IPC and Section 75(1)(c) of Tamil

Nadu City Police Act and these offences are non cognizable offences.

However on perusal of the printed copy of the First Information Report it

appears that 505(1)(b) of IPC was hand written. On perusal of the

complaint no averments to attract the provision under Section 505(1)(b)

of IPC. Further the learned Magistrate has also refused to remand the

accused for the offence under Section 505(1)(b) of IPC. Therefore it

appears that the offence under Section 505(1)(b) of IPC was included

later with handwritten without any averments in the complaint to attract

the offence under Section 505(1)(b) of IPC for the reasons best known to

them.

17. At this juncture, the learned counsel appearing to the third

respondent argued that since the offence under Section 505(1)(b) is

cognizable offence the police can very well investigate the case as per

Section 155(4) of Cr.P.C. As per Section 155(4) of Cr.P.C., Where a

case relates to two or more offences of which at least one is cognizable,

the case shall be deemed to be a cognizable case, notwithstanding that

the other offences are non-cognizable. However the complaint does not

disclose any cognizable offence and mere inclusion of cognizable offence

for the reasons best known to them will not affect the procedures under

Section 155 of Cr.P.C. Once the procedures under Sections 155(1)and

https://www.mhc.tn.gov.in/judis
12/17
 Crl.O.P.(MD).No.563 of 2019

(2) of Cr.P.C are mandatory as per the above said judgments submitted

by the learned counsel for the petitioner, mere inclusion of cognizable

offence without any materials in the complaint, it does not mean that the

procedures mandated under Section 155(1)and (2) of Cr.P.C would not

attracted. Therefore mere inclusion of 505(1)(b) of IPC in the First

Information Report is not sufficient to deviate from the procedure

mandated under Sections 155(1)and (2) of Cr.P.C. Hence the arguments

of the learned counsel appearing for the third respondent is not

acceptable.

18. Further the learned counsel for the third respondent relied

on the provisions under Section 2(d) of Cr.P.C., which reads as follows:

“2(d) complaint means any allegation made orally or in

writing to a Magistrate, with a view to his taking action under this
Code, that some person, whether known or unknown, has committed
the offence, but does not include a police report.
Explanation: A report made by a police officer ia case
which discloses, after investigation , the commission of a non
cognizable offence shall be deemed to be a complaint; and the police
officer by whom such report is made shall be deemed to be the
complainant”

19. But in this case the police registered the First Information

Report only for cognizable offence and Section 2(d) of Cr.P.C., is on

different context and section 2(d) of Cr.P.C will not come into play in this

case, because as per Section 2(d) of Cr.P.C. after investigation any report

https://www.mhc.tn.gov.in/judis
13/17
 Crl.O.P.(MD).No.563 of 2019

relating to the cognizable offence in which code such a report is to be

treated as a complaint of police officer concerned. But in this case the

averments of complaint discloses the non cognizable offence. Thereby the

arguments of the learned counsel appearing for the third respondent

cannot be accepted.

20. In this case First Information Report has been registered

under Sections 290 of IPC and Section 75(1)(c) of Tamil Nadu City Police

Act and thereafter without any allegation in the complaint the Section

505(1)(b) of IPC was inserted by handwritten and the learned Magistrate

also refused to remand under Section 505(1)(b) of IPC, thereby the

police ought to have followed the procedures contemplated under Section

155 of Cr.P.C. The section 505(1)(b) of IPC was handwritten without any

material to attract the said provision. Even according to the prosecution

already at the time of remand itself the Section 505(1)(b) of IPC was

rejected, while so thereafter the police have to obtain specific orders

from the learned Magistrate to investigate the case for the offences

under Sections 290 of IPC and 75(1)(c) of Tamil Nadu City Police Act.

Therefore in this case the procedures under Section 155 of Cr.P.C have

not been followed.

21. So far as section 75(1)(c) of Tamil Nadu City Police Act is

concerned Thoothukudi District has not been notified to invoke the

https://www.mhc.tn.gov.in/judis
14/17
 Crl.O.P.(MD).No.563 of 2019

Tamil Nadu City Police Act and thereby also the charge against the

petitioner is liable to be quashed.

22. The first respondent police have filed final report for the

offences under Section 290 of IPC and Section 75(1)(c) of Tamil Nadu

City Police Act. As far as offence under Section 290 of IPC is concerned

as per averments of the charge sheet the petitioner raised slogan that

“Fascist B.J.P down down” (gh.rp.r. gh.[h.fh. Ml;rp xopf),. Now it is relevant

to extract the provisions under Section 290 of IPC.

“290. Punishment for public nuisance in cases not otherwise

provided for —
Whoever commits a public nuisance in any case not otherwise punishable by this
Code, shall be punished with fine which may extend to two hundred rupees

23. On careful perusal of the above section no any averments in

the charge sheet to attract the said provision. Further the offence under

Section 290 of IPC is punishable with fine which may extend to two

hundred rupees.

24. The First Information Report and the charge sheet discloses

that the petitioner only raised slogan as 'Fascist B.J.P' (gh.rp.r. gh.[h.fh.

Ml;rp xopf) and those words do not constitute any offence and it is trivial

in nature . Therefore as discussed supra, the charge sheet in S.T.C.No.

324 of 2018 on the file of the learned Judicial Magistrate No.III,

Thoothukudi is liable to be quashed.

https://www.mhc.tn.gov.in/judis
15/17
 Crl.O.P.(MD).No.563 of 2019

25. Accordingly this Criminal Original Petition is allowed and

the proceedings in S.T.C.No.324 of 2018 on the file of the learned

Judicial Magistrate No.III, Thoothukudi is quashed. Consequently

connected miscellaneous petitions are closed.

16.08.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
aav

To

1. The Judicial Magistrate No.III, Thoothukudi

2. The Inspector of Police

Pudukottai Police Station,
Thoothukudi District.

3.The Additional Public Prosecutor,

Madurai Bench of Madras High Court,
Madurai.

https://www.mhc.tn.gov.in/judis
16/17
 Crl.O.P.(MD).No.563 of 2019

P.DHANABAL, J.

aav

Crl.O.P.(MD).No.563 of 2019

16.08.2023

https://www.mhc.tn.gov.in/judis
17/17