Madras High Court

A.G.Venkatachalam vs The State Represented By on 12 November, 2021

                                                                      CRL.O.P.No.21377 of 2021


                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                             DATED : 12.11.2021

                                                  CORAM:

                                  THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR

                                           CRL.O.P.No.21377 of 2021
                                                     and
                                           Crl.M.P.No.11564 of 2021

                     A.G.Venkatachalam                                  ...Petitioner

                                                      Versus

                     1.The State represented by
                       The Inspector of Police
                       Anthiyur Police Station
                       Crime No.190 of 2016
                       Erode District.

                     2.P.Arul Mani                                      ...Respondents



                     PRAYER: Criminal Original Petition filed under Section 482 of the
                     Code of Criminal Procedure, to call for the records culminating in
                     the STC.No.306 of 2021, pending on the file of the Judicial
                     Magistrate No.I, Erode, quash the same.



                     Page No.1 of 14


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                                                                               CRL.O.P.No.21377 of 2021


                                       For Petitioner    :     Mr.B.M.Subash

                                       For Respondents :      Mr.Hasan Mohamed Jinnah
                                                              State Public Prosecutor
                                                              assisted by
                                                              Mr.A.Damodaran for R1
                                                              Additional Public Prosecutor

                                                        ORDER

This Criminal Original Petition has been filed to call for

the records culminating in the STC.No.306 of 2021, pending on the

file of the Judicial Magistrate No.I, Erode, quash the same.

2. The case of the prosecution is that on 24.06.2017, the

petitioner, who is a member of a political party, along with several

members gathered at Anthiyur Bus Stand and burned the effigy of a

political leader. Hence, a case was registered for the offences under

Sections 143, 188 and 285 of IPC and the same was taken on file

before the Judicial Magistrate No.I, Erode in STC.No.306 of 2021.

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3. The learned counsel appearing for the petitioner

submitted that the Hon'ble Supreme Court of India held that the right

to freely assemble and also right to freely express once view are

constitutionally protected rights, under Part III and their enjoyment

can be restricted only in proportional manner through a fair and non-

arbitrary procedure provided in Article 19 of Constitution of India.

He further submitted that it is the duty of the Government to protect

the rights of, freedom of speech and assemble that are so essential to

a democracy. According to Section 195(1)(a) of Cr.P.C., no Court

can take cognizance of an offence under Section 188 of IPC, unless

the public servant has a written order from the authority. Further he

submitted that the petitioner or any other members, never involved

in any unlawful assembly and there is no evidence that the petitioner

or others restrained anybody. However, the officials of the

respondent police beaten the petitioner and others. When there was

lot of members involved in the protest, the respondent police had

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registered the case, as against the petitioner and others. Therefore, he

sought for quashing the proceeding.

4. Per contra, the learned Additional Public Prosecutor

submitted that the petitioner along with others assembled in large

numbers, there are specific allegations as against the petitioner to

proceed with the trial. Further, he would submit that Section 188 of

IPC is a cognizable offence and therefore it is the duty of the police

to register a case. Though there is a bar under Section 195(a)(i) of

Cr.P.C. to take cognizance for the offence under Section 188 of IPC,

it does not mean that the police cannot register FIR and investigate

the case. Therefore, he vehemently opposed the quash petition and

prayed for dismissal of the same.

5. Heard the learned counsel for the petitioner and the

learned Additional Public Prosecutor appearing for the respondent.

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6. On perusal of the charge, it is seen that the petitioner

along with other accused without getting prior permission from the

concerned authority, the petitioner along with several members

assembled and burned the effigy of a political leader. Therefore, the

respondent police levelled the charges under Sections 143, 188 and

285 of IPC as against the petitioner. Except the official witnesses, no

one has spoken about the occurrence and no one was examined to

substantiate the charges against the petitioner. It is also seen from

the charge itself that the charges are very simple in nature and trivial.

Section 188 reads as follows:

“188. Disobedience to order duly promulgated by public servant — Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes to

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tender to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

7. The only question for consideration is that whether

the registration of case under Sections 143, 188 and 285 of IPC,

registered by the respondent is permissible under law or not? In this

regard it is relevant to extract Section 195(1)(a) of the Criminal

Procedure Code, 1973 :-

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“195.Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. (1) No Courts shall take cognizance-

(a) (i) of any offence punishable under sections 172 to 188 (both inclusive)of the Indian Penal Code (45 of 1860), or

(ii)of any abetment of, attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit, such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;...”

Therefore, it is very clear that for taking cognizance of the

offences under Section 188 of IPC, the public servant should lodge a

complaint in writing and other than that no Court has power to take

cognizance.

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8. The learned counsel for the petitioner relied upon a

judgement in Mahaboob Basha Vs. Sambanda Reddiar and others

reported in 1994(1) Crimes, Page 477. He also relied upon a

judgment in a batch of quash petitions, reported in 2018-2-L.W.

(Crl.) 606 in Crl.O.P. (MD)No. 1356 of 2018, dated 20.09.2018 in

the case of Jeevanandham and others Vs. State rep. by the

Inspector of Police, Karur District, and this Court held in

Paragraph-25, as follows :-

"25.In view of the discussions, the following guidelines are issued insofar as an offence under Section 188 of IPC, is concerned:

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

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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;

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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.

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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

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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.

9. In the case on hand, the First Information Report has

been registered by the respondent police for the offences under

Sections 143, 188 and 285 of IPC. He is not a competent person to

First Information Report is liable to be quashed for the offences

under Section 188 of IPC. Further, the complaint does not even state as

to how the protest formed by the petitioner and others is an unlawful

protest and does not satisfy the requirements of Section 143 and 285 of

IPC. Therefore, the final report cannot be sustained and it is liable to

be quashed.

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M.NIRMAL KUMAR, J.

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