Madras High Court
Thandapani @ R.Dhandapani vs State Through on 8 April, 2021
Crl.O.P.(MD)No.5085 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.5085 of 2021
and
Crl.M.P(MD) No.2905 of 2021
Thandapani @ R.Dhandapani ... Petitioner
Vs.
1.State through
The Inspector of Police,
Town North Police Station,
Dindigul District. ... 1st Respondent/
Complainant
2.K.Alaguraj
The Sub Inspector of Police,
Town North Police Station,
Dindigul District. ... 2nd Respondent/
De facto complainant
PRAYER : Criminal Original Petition is filed under Section 482 of
Cr.P.C, to call for the records in S.T.C.No.664 of 2019 on the file of the
learned Judicial Magistrate No.I, Dindigul District and quash the same as
arbitrary and illegal.
For Petitioner : Mr.A.Arul Jenifer
For R-1 : Mr.R.Anandharaj
Additional Public Prosecutor
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Crl.O.P.(MD)No.5085 of 2021
ORDER
This petition has been filed to quash the proceedings in S.T.C.No.
664 of 2019 on the file of the learned Judicial Magistrate No.I, Dindigul
District.
2.The case of the prosecution in brief is that on 27.07.2017, the
accused persons in Crime No.557 of 2017 on the file of the first
respondent herein have gathered in mass without seeking permission
from the authorities and performed human chain protest near periyar
statue in Dindigul town and demonstrated the protest against the
implementation of NEET examination. Hence, a case was registered
against the petitioner and other persons under Sections 145, 188 and
342 of IPC. After completion of investigation, the final report was filed,
which was also taken on file by the learned Judicial Magistrate No.I,
Dindigul District, in S.T.C.No.664 of 2019.
3.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.
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Crl.O.P.(MD)No.5085 of 2021
4.According to the learned Additional Public Prosecutor for the
respondent police, in respect of Crime No.557 of 2017, totally 31
accused were arrayed, out of which, 23 persons filed a petition in
Crl.O.P(MD) No.19696 of 2019 before this Court and this Court by its
order dated 01.01.2020, quashed the proceedings based upon the
judgment of this Court in the case of Jeevanandham and other Vs.
Inspector of Police, Sivakasi Town Police Station, Virudhunagar
District, reported in 2018 2 LW (crl) 606 dated 20.09.2018. The facts
and circumstances of the case squarely applies to this case also. It is also
brought to the notice of this Court that the remaining persons have not
approached this Court for the similar relief.
5.Heard the learned counsel for the petitioner and the learned
Additional Public Prosecutor for the first respondent.
6.The main allegation that has been levelled against the petitioner
is that inspite of a ban order imposed by the police, without permission
the petitioner along with others gathered together near periyar statue in
Dindigul town and performed a human chain protest. 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
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Crl.O.P.(MD)No.5085 of 2021
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
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
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Crl.O.P.(MD)No.5085 of 2021
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
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
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Crl.O.P.(MD)No.5085 of 2021
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.
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 and filing the final report. The offence under Section
342 of I.P.C., will not arise and the ingredients would also not attract.
There is no allegation to the effect that the petitioner along with others
illegal detained or obstructed any person. It appears that they have
conducted a demonstration in a peaceful manner by expressing their
grievance against the implementation of the NEET examination.
8.Considering the facts and circumstances of the case, the entire
proceedings in S.T.C.No.664 of 2019 on the file of the learned Judicial
Magistrate No.1, Dindigul, stands quashed, even in respect of the persons
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Crl.O.P.(MD)No.5085 of 2021
who have not filed a petition for the similar relief. Accordingly, this
Criminal Original Petition is allowed. Consequently, connected
miscellaneous petition is closed.
08.04.2021
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 Judicial Magistrate No.I,
Dindigul District.
2.The Inspector of Police,
Town North Police Station,
Dindigul 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.5085 of 2021
G.ILANGOVAN. J.,
cp
Crl.O.P.(MD)No.5085 of 2021
08.04.2021
https://www.mhc.tn.gov.in/judis/
