V.Senthilbalaji vs The State Rep. By The
2021 Latest Caselaw 20186 Mad

                                                                            CRL.O.P.No.7399 of 2020


                                IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED :01.10.2021

                                                       CORAM:

                                 THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR

                                         CRL.O.P.(MD)No.7399 of 2020
                                                     and
                                         Crl.M.P.(MD).No.3583 of 2020


                      V.Senthilbalaji, M/A 45 years,
                      S/o Velusamy                                     ... Petitioner

                                                       Vs.


                      1. The State rep. by the
                         Inspector of Police,
                         Velayuthampalayam Police Station,
                         Karur District.
                         Crime No.263 of 2016.

                      2.Vijayananth                                    ... Respondents



                      PRAYER: Criminal Original Petition filed under Section 482 of the
                      Code of Criminal Procedure, to call for the records pertaining to charge
                      sheet in STC No.1719 of 2019 pending on the file of the Judicial
                      Magistrate No.1, Karur and quash the same.


                      Page No.1 of 11


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                                                                                  CRL.O.P.No.7399 of 2020


                               For Petitioner     :     Mr.K.Balasubramani

                               For Respondent     :     Mr.A.Damodaran,
                                                         Addl.Public Prosecutor
                                                        for R1

                                                        ORDER

This petition has been filed to call for the records pertaining to

charge sheet in STC.No.1719 of 2019 on the file of the Judicial

Magistrate Court No.I, Karur and quash the same.

2. The case of the prosecution is that on 14.05.2016 at 09.00 a.m.,

the defacto complainant and his team members, while patrolling, found

near Thalavapalyam bus stop, the petitioner and the AIADMK political

party cadres proceeding for election campaign by violating the election

code of conduct and giving hindrance to the vehicle as well as the

general public. Hence, the complaint was registered in Crime No/.263 of

2016 for the offences under Sections 143 and 188 of IPC and thereafter,

the case was taken cognizance by the learned Judicial Magistrate No.II,

Karur as STC.No.1719 of 2019. Subsequently, the case was transferred to

learned Judicial Magistrate No.I, Karur .

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3.The learned counsel for the petitioner submitted that the

respondent police without conducting proper enquiry, filed a charge sheet

in a mechanical manner by arraying the petitioner as accused. Further, it

is submitted that due to the political pressure, the respondent registered a

case and filed a charge sheet before the Judicial Magistrate No.II, Karur,

which has been subsequently transferred to Judicial Magistrate NO.I,

Karur. In the final report, there is nothing, except reference to the

gathering. It is a mere expression of opinion. To make out a case, a

specific overtact of the accused to be stated, supported with the

statements and documents. Thus, no prima facie case is made out against

the petitioner for the aforesaid offences. The learned Judicial Magistrate

No.I, Karur, insisting the petitioner to face the case. Since, there is no

offence made out in the charge sheet, having no other option, the

petitioner has filed this quash petition. Hence, the criminal proceedings

initiated against the petitioner in STC No.1719 of 2019 pending on the

file of the learned Judicial Magistrate No.I, Karur, is liable to be quashed.

4. The learned Public Prosecutor for the State submits that there

are specific allegations as against the petitioner to proceed with the trial.

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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. Hence, he vehemently opposed the

quash petition and prayed for dismissal of the petition.

5. This Court considered the submissions made on either side and perused the materials available on records carefully.

6. Admittedly, the charges levelled as against the petitioner are

under Sections 143 and 188 of I.P.C. 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

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in his possession or under his management, disobeys such direction, shall, if such disobedience causes to 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 learned counsel for the petitioner 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

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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 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

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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 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

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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.

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8. In the case on hand, the First Information Report has been

registered by the respondent police for the offences under Sections 143

and 188 IPC. He is not a competent person to register FIR for the

offences under Section 188 of IPC. As such, the First Information Report

or final 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 of IPC. Therefore, the final report

cannot be sustained and it is liable to be quashed. Admittedly in these

cases, the occurrences took place in a public place, in public view,

surprisingly no public or independent witness examined by the

prosecution, which causes serious doubt on the veracity of the complaint.

Further, this Court in the case of “Jeevanandham and others Vs. State

Rep. by Inspector of Police and another reported in (2018) 2 LW Crl.

606” had clearly held that the police officials are not empowered to

register a case under Section 188 IPC and the same is barred under

Section 195 Cr.P.C. There is no material to show that there was any

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promulgation of prohibitory orders which was communicated to the

public and there was any disobedience by the petitioner. Further, in

consequence, the prosecution failed to show whether any trouble

occurred. The respondent Police failed to follow the guidelines issued by

this Court in Jeevanandham (Cited Supra). In several cases, this Court

quashed the proceedings against the accused on similar ground.

9. In the result, this Criminal Original Petition is allowed and the

final report filed by the respondent in STC.No.1719 of 2019 pending on

the file of the Judicial Magistrate No.I, Karur, is hereby quashed as

against the petitioner and others who are similarly placed. Consequently,

the connected Criminal Miscellaneous Petition is closed.

01.10.2021 Index: Yes/No mrp

To

1. The Judicial Magistrate No.I, Karur.

2. The Inspector of Police, Velayuthampalayam Police Station, Karur District.

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M.NIRMAL KUMAR, J.

mrp

CRL.O.P.No.7399 of 2020

01.10.2021

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