Madras High Court
Ahamed Idhrish @ Ahamed Itries vs The State Represented By on 29 April, 2021
Crl.O.P.(MD)No.11731 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.04.2021
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No. 11731 of 2020
and
Crl.MP(MD)No.5362 of 2020
1.Ahamed Idhrish @ Ahamed Itries
2.Sahul Hameed
3.Syed Ibrahim
4.Abdul Lathif ... Petitioners/Accused Nos.1,2,18 & 51
Vs.
1.The State represented by
The Inspector of Police,
Vilakuthoon Police Station,
Madurai City.
(Crime No.937/2019) ... 1st Respondents/Complainant
2.Logeswari ... 2nd Respondent/Defacto
Complainant
Prayer:Criminal Original Petition filed under Section 482 Cr.P.C., to call
for the records pertaining to the First Information Report in Crime No.937
of 2019 on the file of the 1st Respondent and quash the same as illegal so far
as the petitioners are concerned.
1/8
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.11731 of 2020
For Petitioner : Mr.K.Navaneetharaja
For R1 : Mr.K.Suyambulinga Bharathi
Government Advocate (Crl.Side)
ORDER
This Criminal Original Petition has been filed to quash the First
Information Report in Crime No.937 of 2019 on the file of the first
respondent police.
2. According to the learned counsel for the petitioners, the first
respondent registered a case in Crime No.937 of 2019 against the petitioners
and others stating that without getting any permission, the petitioners along
with 114 members assembled near Anna Statue at Keelaveli Veethi,
Madurai District and protested against the verdict given by the Hon'ble
Supereme Court in 'Babar Masjid Case' and restrained the public movement
and caused public nuisance. Due to the social welfare activities, the
petitioners earned enmity of the respondent police. So, a case in Crime No.
937 of 2019 was filed by the second respondent, who is the Inspector of
Police attached to the first respondent police with malafide intention.
Against which, the petitioners have filed the present petition seeking to
quash the case registered against them.
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Crl.O.P.(MD)No.11731 of 2020
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 petitioners is
that defying the ban order imposed by the Government, without permission
the petitioners were conducting protest. 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:-
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Crl.O.P.(MD)No.11731 of 2020
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
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Crl.O.P.(MD)No.11731 of 2020
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
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
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Crl.O.P.(MD)No.11731 of 2020
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.937 of 2019 on the file of the first respondent
police stands quashed. Accordingly, this Criminal Original Petition is
allowed. Consequently, connected miscellaneous petition is closed.
29.04.2021
Internet:Yes
Index:Yes/No
Speaking order/Non-Speaking order
dss
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.11731 of 2020
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 Inspector of Police,
Vilakuthoon Police Station,
Madurai City.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.11731 of 2020
G.ILANGOVAN,J.,
dss
Crl.O.P.(MD)No. 11731 of 2020
and
Crl.MP(MD)No.5362 of 2020
29.04.2021
https://www.mhc.tn.gov.in/judis/
