Madras High Court
Arun Pandiyan vs The State Rep.By on 23 April, 2021
Crl.O.P.(MD)No.1877 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.1877 of 2021
and
Crl.M.P.(MD)No.943 of 2021
Arun Pandiyan ... Petitioner
Vs.
1.The State rep.by
The Inspector of Police,
Vadipatti Police Station,
Vadipatti, Maduai District.
(Crime No.1201 of 2020
2.Kesavaramachandran ...Respondents
PRAYER: Criminal Original Petition is filed under Section 482 of
Cr.P.C, to call for the First Information Report in connection with Crime
No.1201 of 2020 on the file of the Inspector of Police, Vadipatti police
Station, Madurai District and subsequently, quash the same as illegal,
erroneous and devoid of merits forthwith.
For Petitioner : Mr.Sankara Pandian
For R1 : Mr.K.Suyambulinga Bharathi
Government Advocate (crl.side)
https://www.mhc.tn.gov.in/judis/
1/8
Crl.O.P.(MD)No.1877 of 2021
ORDER
This petition has been filed seeking a quashment of First
Information Report in connection with Crime No.1201 of 2020 on the
file of the respondent police.
2. The case of the prosecution is that the petitioner has violated the
Government Order with regard to Covid-19 pandemic and roamed then
and there in a two-wheeler. Hence, a case has been registered against the
petitioner.
3.The learned counsel for the petitioner submitted that the
petitioner had went outside only in the relaxation hours given by the
Government. But the respondent police has foisted the case with an evil
intention. He would further submit 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. The petitioner is working in abroad and due to the
pendency of this case, he is facing difficulty in making arrangement to go
abroad for his livelihood. Hence, he prays for quashing the First
Information Report in Crime No.1201 of 2020.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.1877 of 2021
4.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.
5.Heard the learned counsel on either side.
6.The main allegation that has been levelled against the petitioner
is that inspite of a ban order imposed by the Government, without
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:-
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.1877 of 2021
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
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;
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.1877 of 2021
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
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
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.1877 of 2021
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.
7.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.
8.Considering the facts and circumstances of the case, the entire
proceedings in Crime No.1201 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.
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.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.1877 of 2021
To
1.The Inspector of Police,
Vadipatti Police Station,
Vadipatti, Maduai District.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.1877 of 2021
G.ILANGOVAN. J.
cp
Crl.O.P.(MD)No.1877 of 2021
23.04.2021
https://www.mhc.tn.gov.in/judis/
