Madras High Court
Rajantennison vs State Represented By on 21 April, 2021
Crl.O.P.(MD)No.5692 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.04.2021
CORAM :
THE HONOURABLE Mr. JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.5692 of 2021
and
Crl.M.P.(MD)No.3287 of 2021
Rajantennison ... Petitioner
Vs.
1.State Represented by
The Inspector of Police,
Munneerpallam Police Station,
Tirunelveli District.
(In Crime No.345 of 2020)
2.Maruthakutty ... Respondents
Prayer : Criminal Original Petition is filed under Section 482 of the Code
of Criminal Procedure, to call for the records of the impugned First
Information Report in Crime No.354 of 2020 on the file of the first
respondent police station and quash the same as illegal.
For Petitioner : Mr.K.Manimaran
For R1 : Mr.K.Suyambulinga Bharathi
Government Advocate (Criminal side)\
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1/8
Crl.O.P.(MD)No.5692 of 2021
ORDER
The present petition is filed seeking quashment of the First
Information Report in Crime No. 354 of 2020 pending on the file of the first
respondent police.
2.The case of the prosecution is that on 01.05.2020 at about 08.00
a.m., the second respondent along with his team were monitoring near
Aaraikulam Junction due to Covid-19 lock down, at that time, the petitioner
came in a two wheeler bearing Registration No.TN-76-V-2462 Bajaj
Discover violated the Government order. So, the vehicle was seized and a
case in Crime No.354 of 2020 was registered for the alleged offence under
Sections 188 and 269 of IPC. Seeking quashment of this case, the petitioner
has filed this petition mainly on the ground that the complaint lodged by the
second respondent is illegal, since there is a bar under Section 195(1)(a)(i)
of Cr.P.C.
3.The learned Government Advocate (Criminal side) for the
respondent police would submit that the facts of the case are exactly similar
to the case covered in the decision reported in 2018 2 LW (crl) 606
[Jeevanandham and other Vs. Inspector of Police, Sivakasi Town Police
Station, Virudhunagar District], dated 20.09.2018.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.5692 of 2021
4.Heard the learned counsel on either side.
5.The petitioner is facing charge under Sections 188 and 269 of IPC
before the learned Judicial Magistrate, Cheranmahadevi. Eventhough the
investigation is completed, charge sheet was not taken on file by the
concerned Court. The main allegation against the petitioner is that against
the protocol issued by the Government in view of Covid-19 situation, this
petitioner was found roaming around the public place in his two wheeler.
An offence under Section 188 of IPC is a non-cognizable offence which
cannot be investigated by the first respondent police without proper
permission from the learned Judicial Magistrate, Charenmahadevi.
According to the petitioner, the facts and circumstances of the case is
squarely covered in the judgment by this Court reported in 2018 2 LW (crl)
606 in the case of Jeevanandham and other Vs. Inspector of Police,
Sivakasi Town Police Station, Virudhunagar District and other, wherein
paragraph No.25, certain guidelines were issued by this Court, which are
reproduced herein for ready reference:-
a)A Police Officer cannot register an FIR for any of the
offences falling under Section 172 to 188 of IPC.
b)A Police Officer by virtue of the powers conferred
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under Section 41 of Cr.P.C will have the authority to take
Crl.O.P.(MD)No.5692 of 2021
action under Section 41 of Cr.P.C., when a cognizable offence
under Section 188 IPC is committed in his presence or where
such action is required, to prevent such person from
committing an offence under Section 188 of IPC.
c)The role of the Police Officer will be confined only to
the preventive action as stipulated under Section 41 of Cr.P.C
and immediately thereafter, he has to inform about the same to
the public servant concerned/authorised, to enable such public
servant to give a complaint in writing before the jurisdictional
Magistrate, who shall take cognizance of such complaint on
being prima facie satisfied with the requirements of Section
188 of IPC.
d)In order to attract the provisions of Section 188 of
IPC, the written complaint of the public servant concerned
should reflect the following ingredients namely;
i) that there must be an order promulgated by the public
servant;
ii) that such public servant is lawfully empowered to
promulgate it;
iii)that the person with knowledge of such order and
being directed by such order to abstain from doing certain act
or to take certain order with certain property in his possession
and under his management, has disobeyed; and
iv)that such disobedience causes or tends to cause;
(a) obstruction,annoyance or risk of it to any
person lawfully employed; or
(b) danger to human life, health or safety; or
(c) a riot or affray.
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Crl.O.P.(MD)No.5692 of 2021
e)The promulgation issued under Section 30(2) of the
Police Act, 1861, must satisfy the test of reasonableness and
can only be in the nature of a regulatory power and not a
blanket power to trifle any democratic dissent of the citizens
by the Police.
f)The promulgation through which, the order is made
known must be by something done openly and in public and
private information will not be a promulgation. The order
must be notified or published by beat of drum or in a Gazette
or published in a newspaper with a wide circulation.
g)No Judicial Magistrate should take cognizance of a
Final Report when it reflects an offence under Section 172 to
188 of IPC. An FIR or a Final Report will not become void ab
initio insofar as offences other than Section 172 to 188 of IPC
and a Final Report can be taken cognizance by the
Magistrate insofar as offences not covered under Section
195(1)(a)(i) of Cr.P.C.
h)The Director General of Police, Chennai and
Inspector General of the various Zones are directed to
immediately formulate a process by specifically empowering
public servants dealing with for an offence under Section 188
of IPC to ensure that there is no delay in filing a written
complaint by the public servants concerned under Section
195(1)(a)(i) of Cr.P.C.
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Crl.O.P.(MD)No.5692 of 2021
6.It is seen that the guidelines that have been prescribed in the above
said judgment was not followed by the respondent police, while registering
a case and filing the final report.
7.Considering the facts and circumstances of the case, the entire
proceedings in Crime No.354 of 2020 on the file of the first respondent
police stands quashed. Accordingly, this Criminal Original Petition is
allowed. Consequently, connected miscellaneous petition is closed.
21.04.2021
Index : Yes/No
Internet:Yes/No
sji
Note : In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
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Crl.O.P.(MD)No.5692 of 2021
To
1.Judicial Magistrate, Cheranmahadevi.
2.The Inspector of Police,
Munneerpallam Police Station,
Tirunelveli District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.5692 of 2021
G.ILANGOVAN, J.,
sji
Crl.O.P.(MD)No.5692 of 2021
21.04.2021
https://www.mhc.tn.gov.in/judis/
