Madras High Court
Ranjith Kumar vs State Represented By on 23 April, 2021
Crl.O.P.(MD)No.2120 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.2120 of 2021
and
Crl.M.P.(MD)No.1033 of 2021
Ranjith Kumar ... Petitioner
Vs.
State represented by
The Sub-Inspector of Police,
Alanganallur Police Station,
Madurai District. ...Respondent
PRAYER: Criminal Original Petition is filed under Section 482 of
Cr.P.C, to call for the records in FIR in Crime No.1626 of 2020 dated
17.08.2020 pending on the file of the respondent police as against the
petitioner and quash the same.
For Petitioner : Mr.M.Pandian
For Respondent : Mr.K.Suyambulinga Bharathi
Government Advocate (crl.side)
ORDER
This petition has been filed seeking a quashment of the FIR in
Crime No.1626 of 2020, dated 17.08.2020 on the file of the respondent
police.
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Crl.O.P.(MD)No.2120 of 2021
2.According to the learned counsel for the petitioner, on
17.08.2020, the respondent police registered the case in Crime No.1626
of 2020 as if the petitioner was roaming in the road by using his two-
wheeler at that time of prohibition due to Covid-19, but no prima facie
case has been made out in FIR and the petitioner has only gone to the
medical shop to get medicine for his ill-parents, which fact was not taken
into account by the respondent police. Hence, the petitioner has filed the
present petition seeking to quash the case registered against him on the
ground that the complaint lodged by the 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.
4.Heard the learned counsel on either side.
5.The main allegation that has been levelled against the petitioner
is that inspite of a ban order imposed by the Government, without
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Crl.O.P.(MD)No.2120 of 2021
permission the petitioner was roaming in the road by using 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 concerned Court. According to the
petitioner, the facts and circumstances of the case is squarely covered in
the judgment of 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 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
under Section 41 of Cr.P.C will have the authority to take
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
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Crl.O.P.(MD)No.2120 of 2021
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.
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
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Crl.O.P.(MD)No.2120 of 2021
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.
6.It is seen that the guidelines that has been prescribed in the
above said judgment was not followed by the respondent police, while
registering a case.
7.Considering the facts and circumstances of the case, the entire
proceedings in Crime No.354 of 2020 on the file of the respondent police
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Crl.O.P.(MD)No.2120 of 2021
stands quashed. Accordingly, this Criminal Original Petition is allowed.
Consequently, connected miscellaneous petition is closed.
23.04.2021
Index : Yes/No
Internet : Yes/No
cp
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.
To
1.The Sub-Inspector of Police,
Alanganallur Police Station,
Madurai District.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD)No.2120 of 2021
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Crl.O.P.(MD)No.2120 of 2021
G.ILANGOVAN. J.
cp
Crl.O.P.(MD)No.2120 of 2021
23.04.2021
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