Vague Criminal Charges Cannot Be Used To Stifle Peaceful Democratic Agitations: Bombay High Court
The Court found no material showing that the applicant had obstructed commuters or joined an assembly having an unlawful common object. His later participation in an agitation seeking action over the road’s condition could not, by itself, constitute an offence.
The Bombay High Court has reiterated that vague criminal charges lacking the essential ingredients of penal offences cannot be used to stifle peaceful agitations forming part of the democratic process, provided that protesters do not resort to violence, damage public or private property, or otherwise take the law into their own hands.
The Court was hearing an application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking to quash the FIR, the consequent charge sheet and the pending criminal case. The prosecution concerned alleged wrongful restraint, unlawful assembly and allied offences under the Bharatiya Nyaya Sanhita, 2023, the Maharashtra Police Act, 1951, and the Criminal (Amendment) Act, 1932.
A Bench of Justice M.W. Chandwani, while referring to Mazdoor Kisan Shakti Sangathan v. Union of India (2018), reiterated: “… it is a settled law that prosecutions must not be launched to stifle agitations that are part of democratic process so long as the people do not take the law into their own hands or indulge in violence or damage to public or private property. Article 19(1)(b) of the Constitution guarantees the right to assemble peaceably and without arms”.
The Bench added: “While reasonable restrictions could always be imposed on exercising this fundamental right, such right must not be diluted or stifled based upon vague charges bereft of the essential ingredients to constitute offences under the penal laws. The lines between the constitutional right to protest and the unleashing of penal prosecutions cannot be allowed to be blurred. If this mindset gains traction, it would be a sad day for democracy.”
Advocate Purushottam Patil appeared for the applicant. Additional Public Prosecutor H.D. Futane represented the State.
Background
The prosecution arose after a pickup vehicle struck an electricity pole and overturned, injuring its occupants. People gathered at the site, expressed anger over the road’s poor condition and demanded action against the responsible Public Works Department officials and contractor.
The prosecution alleged that members of the gathering attempted to obstruct traffic by tying a rope across the road. The police dispersed them. The FIR alleged that the applicant and others thereafter formed an unlawful assembly and continued demanding action.
The applicant argued that protesting against the road’s condition could not constitute an offence, that no specific act of obstruction was attributed to him and that the record contained no duly promulgated prohibitory order.
The State contended that the gathering had attempted to restrain commuters by tying a rope across the road and that the applicant was present, disclosing wrongful restraint and membership of an unlawful assembly.
Court’s Observations
No Commuter Shown To Have Been Wrongfully Restrained
The Court explained that Section 126 of the Bharatiya Nyaya Sanhita, 2023, required the voluntary obstruction of a person from proceeding in a direction in which that person had a right to proceed. The charge sheet did not identify such a person or contain a commuter’s statement alleging obstruction.
The Court held: “There is no whisper in the entire charge-sheet as to who was obstructed from proceeding from one direction to other direction. Not a single statement of any passerby is recorded whose right of way had been obstructed by the people who gathered on the spot. Therefore, the ingredients of Section 126 of the BNS are not attracted against the applicant.”
Agitation Did Not Establish An Unlawful Common Object
The Court noted that an assembly became unlawful only when its common object fell within Section 189 of the Bharatiya Nyaya Sanhita, 2023. The prosecution relied on the clause concerning an assembly formed to commit mischief, criminal trespass or another offence. As the record did not establish an offence, the gathering’s size could not make it unlawful.
The Court observed: “Merely because large number of persons gathered to agitate against the condition of the road and insisting for action against the erring officials of PWD department and the contractor, it cannot be presumed that the people gathered on the spot formed an unlawful assembly.”
The Court distinguished the two stages described in the FIR. The allegation concerning an attempt to block commuters did not name the applicant. His name appeared only after the police cleared the road, when he allegedly joined the demand for action. That later participation was not an offence. Since Sections 126 and 189 of the Bharatiya Nyaya Sanhita, 2023, were not attracted, the allied allegations under Sections 190 and 191(2) also failed.
Other Statutory Offences Lacked Their Essential Ingredients
Addressing Section 135 of the Maharashtra Police Act, 1951, the Court required proof of a lawful order and its due promulgation. The record contained neither.
The Court stated: “There is no material on record which suggests existence of any order passed by the Commissioner and the District Magistrate at the relevant time or that it was duly promulgated so that the general public may be able to know existence of such an order. Therefore, the ingredients of Section 135 of the Act of 1951 are not attracted in the present case.”
The Court also found no conduct attracting Section 7 of the Criminal (Amendment) Act, 1932, which addresses molestation prejudicing employment or business.
Non-Cognizable Allegations Could Not Independently Survive
Referring to State of Haryana v. Bhajan Lal (1992), the Court noted that proceedings could be quashed where the allegations did not constitute an offence. It also examined the non-cognizable allegations added under the Bharatiya Nyaya Sanhita, 2023, and the Maharashtra Police Act, 1951.
The Court held: “In the present case as the cognizable offences as alleged are not made out, the police could not have investigated into these non-cognizable sections without prior permission of the competent Magistrate as stated in clause (4) of para 102 in the case of Bhajan Lal (supra). Therefore, these sections will also not survive in the present case.”
Conclusion
The Court held that, even if the allegations in the FIR were accepted at face value, they did not disclose any of the alleged offences against the applicant. It found that continuing the prosecution would constitute an abuse of the court’s process and warranted the exercise of the High Court’s inherent powers to secure the ends of justice.
The application was accordingly allowed. The Court quashed the FIR, the consequent charge sheet and the pending criminal proceedings insofar as they concerned the applicant.
Cause Title: Nishkarsh S/o Kiran Nimgade v. State of Maharashtra (Neutral Citation: 2026:BHC-NAG:14958)
Appearances
Applicant: Purushottam Patil with N.A. Waghmare, Vinay Rathi and Yash Ghodichor, Advocates
State: H.D. Futane, Additional Public Prosecutor