Madhya Pradesh High Court
Rao Uday Pratap Singh vs Rampat Barode on 17 January, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
MCRC-42774-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 17th OF JANUARY, 2025
MISCELLANEOUS CRIMINAL CASE NO.42774 OF 2024
RAO UDAY PRATAP SINGH & ANOTHER
VS.
RAMPAT BARODE
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Shri Surendra Singh - Senior Advocate assisted by Shri Rohan Harne -
Advocate and Shri Kartik Jaggi - Advocate for the petitioners.
Shri Aryan Shukla - Advocate for the respondent.
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Reserved on : 11.12.2024
Pronounced on : 17.01.2025
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ORDER
This petition has been filed under Section 528 of the Bhartiya
Nagarik Suraksha Sanhita, 2023, seeking quashment of complaint dated
01.04.2014, in pursuance to which, order dated 22.11.2023 has been passed
framing charges against the petitioners and also the consequential
proceedings pending before the Special Court.
2. As per the facts of the case, the respondent had filed a complaint on
01.04.2014 alleging that an offence under Section 188 of Indian Penal
Code, 1860 [for short 'I.P.C.'], has been committed by the present
petitioners. The said private complaint is available on record as Annexure-
P/1 and as per the allegations made in the complaint, the petitioners
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violated the prohibitory order dated 07.03.2014 issued by the complainant
who was the-then Sub-Divisional Magistrate imposing restrictions by using
power of Section 144 of the Code of Criminal Procedure [for short
'Cr.P.C.']. The said prohibitory order dated 07.03.2014 is also available on
record as Annexure-P/2. The order dated 07.03.2014 reveals that a
prohibitory direction was issued towards general public conveying that
several activities including political campaign shall remain prohibited till
such order remains in force. The dispute arose on 27.03.2014 when a news
article was published in a local daily newspaper titled as 'Jabalpur Express'
alleging that the petitioners herein have violated the prohibitory order dated
07.03.2014 and organized a meeting on 23.03.2014 in a temple situated at
Village- Bohani, Gadarwara, and tried to influence the voters. The said
article of newspaper is available on record as Annexure-P/3.
3. Learned senior counsel for the petitioners has submitted that the said
news article would reveal that the same does not merely covers the alleged
incident but also goes on to create an impression that the present petitioners
were indulged in a political campaigning, however, the said article does not
bear even a single whisper regarding any injury, mishap or nuisance being
caused due to the alleged activities of the present petitioners. He submits
that the Tahsildar was asked to make an enquiry and submit the report, who
in turn, had made an enquiry and submitted its report dated 27.03.2014
contending that the petitioners visited Shri Dev Janki Mandir on
23.03.2014 and a crowd of around 20-25 persons was present in the said
temple although no political speech was delivered by the present
petitioners. The report also does not reveal any injury, mishap or nuisance
caused to any of the persons present on the spot and as such, according to
learned senior counsel for the petitioners, the offence of Section 188 of
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I.P.C. is not made-out. He has also submitted that this Court considering
the similar aspect of the matter, has decided one petition i.e. M.Cr.C.
No.2373 of 2024 vide order dated 18.01.2024 and dismissed the complaint
made by the authority against the petitioners therein. He has placed
reliance upon a judgment reported in (2012) 5 SCC 1 parties being
Ramlila Maidan Incident, IN RE (Suo Motu WP (Crl.) No.122 of 2011,
decided on February 23, 2012) decided by the Court in a reference case
taking suo moto cognizance.
4. On the other hand, learned counsel for the respondent has opposed
the submissions made by learned senior counsel for the petitioners and
submitted that the facts and circumstances existing in the present case are
sufficient to initiate action against the present petitioners under the
respective provision and the Court has not committed any wrong.
According to him, the complaint dated 01.04.2014 so also the order passed
by the Court below on 07.04.2014, cannot be quashed on the grounds
raised on behalf of the petitioners.
5. Considering the submissions made by learned counsel for the parties
and perusal of record, I am of the opinion that when in similar
circumstances, this Court while deciding M.Cr.C. No.2373 of 2024 parties
being Govind Singh Rajput Vs. The State of Madhya Pradesh, has
considered the respective provision and observed as under:-
"4. I have heard rival contentions of learned counsel for the parties and also
perused the record. First of all, it is required to see as to what are the essential
ingredients for constituting an offence of Section 188 of I.P.C. and their availability
is also necessary to register an offence, therefore, Section 188 of I.P.C. is being
reproduced hereinbelow:-
"188. Disobedience to order duly promulgated by public
servant.- Whoever, knowing that, by an order promulgated by a public
servant lawfully empowered to promulgate such order, he is directed to
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abstain from a certain act, or to take certain order with certain property in
his possession or under his management, disobeys such direction,
shall, if such disobedience causes or tends to cause obstruction,
annoyance or injury, or risk of obstruction, annoyance or injury, to any
person lawfully employed, be punished with simple imprisonment for a term
which may extend to one month or with fine which may extend to two
hundred rupees, or with both;
and if such disobedience causes or trends to cause danger to human
life, health or safety, or causes or tends to cause a riot or affray, shall be
punished with imprisonment of either description for a term which may
extend to six months, or with fine which may extend to one thousand
rupees, or with both.
Explanation.- It is not necessary that the offender should intend to
produce harm, or contemplate his disobedience as likely to produce harm. It
is sufficient that he knows of the order which he disobeys, and that his
disobedience produces, or is likely to produce, harm."
5. From perusal of the aforesaid provision, it is clear that to constitute an offence,
there must be availability of necessary ingredients such as any disobedience caused
with an intent to cause obstruction, annoyance or injury, or risk of obstruction,
annoyance or injury, to any person lawfully employed and further if such
disobedience causes or trends to cause danger to human life, health or safety, or
causes or tends to cause a riot or affray. Even otherwise, as per the explanation
appended with the respective provision, the intention to cause any harm for
disobeying the prohibitory measure is a material ingredient to constitute an offence
of Section 188 of I.P.C. From the material produced by the prosecution by way of
charge-sheet, it is clear that the prosecution has shown the presence of the petitioner
in the area where prohibitory measure was in force by invoking Section 144 of
Cr.P.C., but there is no indication and material available showing that the presence
of petitioner may cause any harm to anybody. There is nothing on record indicating
that the petitioner and other persons have any intention to do so or to create any
nuisance or causing any injury to anybody. Thus, it is clear that upon mere presence
in the said area where Section 144 of Cr.P.C. was in force, offence under Section
188 of I.P.C. cannot be made-out.
6. So far as the case relied upon by learned counsel for the petitioner in the case of
Periyasamy (supra) is concerned, in said case, petition for quashing of FIR
registered for offence under Sections 188, 269 of I.P.C. was filed and the Court
considering the material facts of said case that the petitioner along with others,
without wearing mask and without following social distance, went on the public
road as rally for participating in the memorial day function of Immanuvel Sekaran
and raised slogans in violation of the prohibition order pass ed under Section 144 of
Cr.P.C. and refused to obey the police instructions, and also relying upon the
judgment of Madras High Court in Crl.O.P(MD) No.3770 of 2012, allowed the said
petition. Relevant paragraphs of said order are being reproduced hereinbelow:-
"7. In the decision relied on by the petitioner in CRL.OP(MD) No.3770 of
2012 dated 06.06.2018, this Court in similar circumstances, has held as
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follows:-
"4. This Court is of the view that Section 188 of IPC can be invoked
only if there has been a disobedience of a duly promulgated order by
a public servant. The said provision reads as under:
"188. Disobedience to order duly promulgated by public
servant- Whoever, knowing that, by an order promulgated by
a public servant lawfully empowered to promulgate such
order, he is directed to abstain from a certain act, or to take
certain order with certain property in his possession or under
his management, disobeys such direction, shall, if such
disobedience causes to tender to cause obstruction,
annoyance or injury, or risk of obstruction, annoyance or
injury, to any person lawfully employed, be punished with
simple imprisonment for a term which may extend to one
month or with fine which may extend to two hundred rupees,
or with both; and if such disobedience causes or trends to
cause danger to human life, health or safety, or causes or
tends to cause a riot or affray, shall be punished with
imprisonment of either description for a term which may
extend to six months, or with fine which may extend to one
thousand rupees, or with both."
5.It is not in dispute that during the relevant time, no prohibitory
order was in force. The petitioner had obtained permission to
conduct the demonstration. Again, to make out an offence under
Section 143 of IPC, it must be shown that the petitioner was a
member of an unlawful assembly. What is unlawful assembly is
defined in Section 141 of IPC. The said provision reads as under:
"141. Unlawful assembly - An assembly of five or more
persons is designated an "unlawful assembly" if the common
object of the persons composing that assembly is -
First - To overawe by criminal force, or show of
criminal force, the Central or any State Government or
Parliament or the Legislature of any State, or any public
servant in the exercise of the lawful power of such public
servant; or
Second - To resist the execution of any law or of any
legal process; or
Third - To commit any mischief or criminal trespass,
or other offence; or
Fourth - By means of criminal force or show of
criminal force, to any person, to take or obtain possession of
any property, or to deprive any person of the enjoyment of a
right of way, or of the use of water or other incorporeal right
of which he is in possession or enjoyment, or to enforce any
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right or supposed right; or
Fifth - By means of criminal force, or show of
criminal force, to compel any person to do what he is not
legally bound to do, or to omit to do what he is legally
entitled to do."
6. It is not the case of the prosecution that the petitioner exhibited
criminal force or his object was to overawe by criminal force the
Government officials. He did not resist the execution of any law or
any legal process. He did not commit any criminal mischief or any
criminal trespass or any other offence. No where it is shown in the
final report that the object to the assembly of which the petitioner
constituted a part would fall under Section 141 of IPC.
7. Therefore, this Court is of the view that the offences under Section
143 is clearly not made out. That apart, as rightly contended by the
learned counsel for the petitioner disobedience per se will not
attracted Section 188 of IPC. It must be shown that on account of
such disobedience on the part of the petitioner of a duly promulgated
order, by a public Servant, something adverse happened. In this case,
no such event is alleged to have happened. Therefore, this Court is of
the view that Section 188 of IPC is also not made out.
8. This Court is clearly of the view that even if all the averments set
out in the final report are taken as true, no case is made out against
the petitioner. Therefore, the impugned proceedings in C.C.No.146
of 2011 on the file of the learned District Munsif cum Judicial
Magistrate, Andipatti, are quashed.
8. Here in the present case, the petitioner and others went on the public road
as rally for participating in the memorial day function of Immanuvel
Sekaran and disobeyed the instructions of the police. The allegation is very
trivial and simple in nature. Though the learned Government Advocate
(Crl.Side) would state that the charge sheet has been filed, the entire reading
of the FIR shows that no cognizable offence is made out and the learned
Government Advocate (Crl.Side) has also fairly stated that there was no
violence or untoward incident. Even if the above case is directed to be
proceeded with, no fruitful purpose would be achieved.
9. As rightly contended by the learned counsel for the petitioner, though the
learned Government Advocate (Crl.Side) would state that the charge sheet
has been filed and the same has been taken on file in C.C.No.1728 of 2020,
I am inclined to quash the impugned proceedings in the interest of justice in
view of the following judgment in Anand Kumar Mohatta & Another Vs.
State (Govt. of NCT of Delhi) Department of Home and another, reported in
(2019) AIR (SC) 210, which reads as follows:-
28. It is necessary here to remember the words of this Court in State
of Karnataka v. L Muniswamy and others which read as follows:
7. ..In the exercise of this wholesome power, the High Court
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is entitled to quash a proceeding if it comes to the conclusion
that allowing the proceeding to continue would be an abuse
of the process of the Court or that the ends of justice require
that the proceeding ought to be quashed. The saving of the
High Court's inherent powers, both in civil and criminal
matters, is designed to achieve a salutary public purpose
which is that a court proceeding ought not to be permitted to
degenerate into a weapon of harassment or persecution. In a
criminal case, the veiled object behind a lame prosecution,
the very nature of the material on which the structure of the
prosecution rests and the like would justify the High Court in
quashing the proceeding in the interest of justice."
10. Accordingly, the charge sheet filed in C.C.No.1728 of 2020 on the file of
the learned Judicial Magistrate, Paramakudi, in Crime No.332/2020 on the
file of the 1st respondent/police is quashed and the Criminal Original
Petition is allowed. Consequently, connected miscellaneous petition is
closed."
7. In view of the aforesaid and considering the yardstick for quashing the FIR as
has been laid-down by the Supreme Court in the case of State of Haryana Vs.
Bhajan Lal & Others reported in 1992 Supp(1) SCC 335, relevant paras 102 and
103 of which read thus : (SCC pp. 378-79):-
""102. In the backdrop of the interpretation of the various relevant
provisions of the Code under Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions relating to the exercise of
the extraordinary power under Article 226 or the inherent powers under
Section 482 of the Code which we have extracted and reproduced above, we
give the following categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the process of any court
or otherwise to secure the ends of justice, though it may not be possible to
lay down any precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an exhaustive list of
myriad kinds of cases wherein such power should be exercised: (1) Where
the allegations made in the first information report or the complaint, even if
they are taken at their face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against the accused. (2)
Where the allegations in the first information report and other materials, if
any, accompanying the FIR do not disclose a cognizable offence, justifying
an investigation by police officers under Section 156(1) of the Code except
under an order of a Magistrate within the purview of Section 155(2) of the
Code. (3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do not disclose
the commission of any offence and make out a case against the accused. (4)
Where, the allegations in the FIR do not constitute a cognizable offence but
constitute only a non-cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as contemplated under
Section 155(2) of the Code. (5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable on the basis of which no
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prudent person can ever reach a just conclusion that there is sufficient
ground for proceeding against the accused. (6) Where there is an express
legal bar engrafted in any of the provisions of the Code or the Act concerned
(under which a criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific provision in
the Code or the Act concerned, providing efficacious redress for the
grievance of the aggrieved party. (7) Where a criminal proceeding is
manifestly attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the power of quashing a
criminal proceeding should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases; that the court will not
be justified in embarking upon an enquiry as to the reliability or genuineness
or otherwise of the allegations made in the FIR or the complaint and that the
extraordinary or inherent powers do not confer an arbitrary jurisdiction on
the court to act according to its whim or caprice."
since in the present case, if the allegations made in the FIR and contents thereof are
considered to be true at their face value, offence of Section 188 of I.P.C. is not
made-out against the petitioner, therefore, the same is an abuse of process of law
and cannot be allowed to be continued.
8. Accordingly, FIR No.0529/2021 and subsequent proceedings based upon the said
FIR are liable to be quashed and are hereby quashed."
and further considering the view expressed by the Supreme Court in
reference case of Ramlila Maidan Incident (supra), in which it has been
observed by the Supreme Court that:-
"320. The disobedience of the propitiatory (sic prohibitory)
order becomes punishable under Section 188 IPC only "if such
disobedience causes or tends to cause obstruction, annoyance or
injury, or risk of obstruction, annoyance or injury, to any persons
lawfully employed" or "if such disobedience causes or tends to cause
danger to human life, health or safety, or causes or tends to cause riot
or affray". Disobedience of an order promulgated by a public servant
lawfully empowered will not be an offence unless such disobedience
leads to enumerated consequences stated under the provision of
Section 188 IPC. More so, a violation of the propitiatory (sic
prohibitory) order cannot be taken cognizance of by the Magistrate
who passed it. He has to prefer a complaint about it as provided under
Section 195(1)(a) CrPC. A complaint is not maintainable in the
absence of allegation of danger to life, health or safety or of riot or
affray."
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this Court is of the opinion that the complaint dated 01.04.2014 filed
against the petitioners and also the order passed by the Court below on
22.11.2023 (Annexure-P/10) which is also impugned in this petition,
deserve to be set-aside and are hereby set-aside.
6. Consequently, the petitioners are discharged from the prosecution
initiated by the Court below upon the complaint made by the respondent.
7. With the aforesaid, the petition is allowed and disposed of.
(SANJAY DWIVEDI)
JUDGE
Prachi
PRACHI PANDEY
2025.01.17 18:08:32 +05'30'
