Madras High Court
Ramakrishnan vs The State Rep.By on 23 April, 2021
Crl.O.P.(MD)No.1779 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.1779 of 2021
and
Crl.M.P.(MD)No.884 of 2021
1.Ramakrishnan
2.Naveen @ Thirumurugan ... Petitioners
Vs.
1.The State rep.by
The Inspector of Police,
Silaiman Police Station,
Madurai District.
(Crirme No.1081 of 2020)
2.S.Karthik ...Respondents
PRAYER: Criminal Original Petition is filed under Section 482 of
Cr.P.C, to call for the entire records pertaining to the impugned First
Information Report in Crime No.1081 of 2020 dated 27.07.2020 for the
offences under Section 188 of IPC r/w 25(2)(a) and 26(2) Disaster
Management Act on the file of the First Respondent and quash the same
against the petitioners as illegal.
For Petitioners : Mr.S.Vanchinathan
For R1 : Mr.K.Suyambulinga Bharathi
Government Advocate (crl.side)
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Crl.O.P.(MD)No.1779 of 2021
ORDER
This petition has been filed seeking a quashment of the First
Information Report in Crime No.1081 of 2020 dated 27.07.2020 for the
offences under Section 188 of IPC r/w 25(2)(a) and 26(2) Disaster
Management Act on the file of the First Respondent
2.According to the learned counsel for the petitioners, the first
respondent registered a case in Crime No.1081 of 2020 against the
petitioners stating that the petitioners were roaming without wearing face
masks in violation of pandemic rules. The petitioners only went for
getting some medicines for their age old family members. Hence, the
petitioners have filed the present petition seeking to quash the case
registered against them 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.
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Crl.O.P.(MD)No.1779 of 2021
4.Heard the learned counsel on either side.
5.The main allegation that has been levelled against the petitioners
is that defying the ban order imposed by the Government, without
permission the petitioners were roaming in the road. 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 petitioners, 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
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Crl.O.P.(MD)No.1779 of 2021
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.
e)The promulgation issued under Section 30(2) of
the Police Act, 1861, must satisfy the test of reasonableness
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Crl.O.P.(MD)No.1779 of 2021
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.
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.
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Crl.O.P.(MD)No.1779 of 2021
7.Considering the facts and circumstances of the case, the entire
proceedings in Crime No.1081 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.
To
The Inspector of Police,
Silaiman Police Station,
Madurai District.
(Crirme No.1081 of 2020)
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Crl.O.P.(MD)No.1779 of 2021
G.ILANGOVAN. J.
cp
Crl.O.P.(MD)No.1779 of 2021
23.04.2021
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