Madras High Court

Panner Selvam vs State Rep By Its on 21 October, 2021

                                                                             Crl.O.P.No.18156 of 2021


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 21.10.2021

                                                         CORAM:

                                   THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR

                                              Crl.O.P.No.18156 of 2021
                                                         &
                                          Crl.M.P.Nos.9982 & 9983 of 2021

                     1.Panner Selvam
                     2.Nallathambi
                     3.Mohan
                     4.Pazhanivel                                             ... Petitioners
                                                         Versus
                     1.State rep by its,
                       The Inspector of Police,
                       Karuveppilankurichi Police Station,
                       Cuddalore District.
                       (Crime No.327/2017)

                     2.Movendhan                                              ... Respondents

                     PRAYER: Criminal Original Petition filed under Section 482 of the Code
                     of Criminal Procedure, to call for the records and quash the charge sheet
                     filed in S.T.C.No.587 of 2020 pending on the file of the Judicial
                     Magistrate No.2, Virudhachalam, Cuddalore District in so far as the
                     petitioner's/accused are concern.


                     Page No.1 of 13


https://www.mhc.tn.gov.in/judis
                                                                                 Crl.O.P.No.18156 of 2021


                                       For Petitioners   : Mr.K.Gandhi Kumar.

                                       For Respondent    :Mr.A.Damodharan,
                                                          Additional Public Prosecutor
                                                          for R1


                                                          ORDER

This Criminal Original Petition has been filed to quash the

proceedings in STC No.587 of 2020 pending on the file of the Judicial

Magistrate No.2, Virudhachalam, Cuddalore District as against the

petitioners.

2. The case of the prosecution is that on 22.11.2017, at about

10.30 a.m., during routine patrol, the respondent police had received

information that in front of the "Alichikudi ration shop", the petitioners

along with other accused, without any prior permission, was holding a

protest, against the Government with regard to the hike of ration fair. The

Inspector of Police had warned the petitioners and others to disperse from

the said place, but they failed to obey the order. Hence, the respondent

police registered a case in Crime No.327 of 2017 under Sections 143 &

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188 of IPC and the same has been taken cognizance as S.T.C.587 of 2020

by the learned Judicial Magistrate No.II, Virudhachalam.

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 showing the petitioners as accused. Further

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

case and filed charge sheet before the Judicial Magistrate No.2,

VIrudhachalam, in STC.No.587 of 2020. In the final report, there is

nothing except reference to the gathering and expressing opinion against

the ruling Government. The Hon'ble Supreme Court of India has held

that the right to assemble and to freely express once view is a

constitutionally protected right under Part III. He further submitted that it

is the duty of the Government to protect the right of freedom of speech

and assemble which is essential character of 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 written order

from the authority. Further submitted that the petitioners or any other

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members had never involved in any unlawful assembly and there is no

evidence that the petitioner or others restrained anybody. When there

several members participated in the protest, the respondent police

registered this case, under Section, 143 and 188 of IPC as against the

petitioners and few others. Therefore, he sought for quashing the

proceeding. He further submitted that it is the duty of the Government to

protect the rights of freedom of speech and assemble that is 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 written order from the authority. Further he submitted that the

petitioner or any other members had never involved in any unlawful

assembly and there is no evidence that the petitioner or others restrained

anybody. When there was lot of members involved in the protest, the

respondent police had registered this case, under Section 143 and 188 of

IPC as against the petitioners and others. Therefore, he sought for

quashing the proceeding.

4. Per contra, the learned Additional Public Prosecutor

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submitted that the petitioners along with others staged protest and 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. More over, the petitioner is an habitual

offender by committing this kind of crimes. Therefore, he vehemently

opposed the quash petition and prayed for dismissal of the same.

5. Heard learned counsel for the petitioners and the learned

Additional Public Prosecutor appearing for the first respondent.

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

others staged protest with regard to hike of ration fair, without getting

prior permission from the concerned authority. Therefore the respondent

police levelled the charges under Sections 143 and 188 of I.P.C. as

against the petitioners and others. It is also seen from the charge itself

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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 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

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with both.

7. The only question for consideration is that whether the

registration of case under Sections 143, 188 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 :-

“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 hall 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

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Section 188 of IPC, the public servant should lodge a complaint in

writing and other than that no Court has power to take cognizance.

8. The learned counsel for the petitioners 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 Cr.P.C., when a cognizable offence under Section

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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

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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

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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.

9. 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

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of IPC. Further, the complaint does not even state as to how the protest

formed by the petitioners 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.

10. Accordingly, the proceedings in STC No.587 of 2020 on the

file of the learned Judicial Magistrate-2, Virudhachalam, is quashed and