Madras High Court

Abdul Wahab vs State Rep. By The on 22 October, 2021

                                                                    CRL.O.P.(MD)Nos.16033 of 2021


                      BEFORE THE MADURAI BENHC OF MADRAS HIGH COURT

                                              DATED : 22.10.2021

                                                   CORAM:

                                  THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR

                                         CRL.O.P.(MD)No.16033 of 2021
                                                    and
                                         CRL.M.P.(MD)No.8595 of 2021


                     1.Abdul Wahab
                     2.A.L.S.Lakshmanan                                        ...Petitioners

                                                      Versus

                     1.State rep. by the
                       The Inspector of Police
                       Palayamkottai Police Station
                       Tirunelveli City,
                       Tirunelveli
                       (Crime No.50 of 2018)

                     2.Thillainagarajan
                       The Inspector of Police,
                       Palayamkottai Police Station
                       Tirunelveli                                             Respondents


                     PRAYER: Criminal Original Petition filed under Section 482 of the
                     Code of Criminal Procedure, to call for the records pertaining to the

                     Page No.1 of 14


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                                                                         CRL.O.P.(MD)Nos.16033 of 2021


                     impugned FIR in Crime No.50 of 2018 on the file of the
                     Palayamkottai Police Station, Tirunelveli City, Tirunelveli District
                     and quash the same against these petitioners.

                                       For Petitioners   :    Mr.S.Ramsundarvijayraj

                                       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 quash

the proceedings in FIR in Crime No.50 of 2018 on the file of the

Palayamkottai Police Station, Tirunelveli City, Tirunelveli District

as against the petitioners.

2. The case of the prosecution is that on 29.01.2018

around 10.15 pm, the petitioners along with others, without

permission conducted a protest against the increase in the price of

the bus fare, as a precautionary measure, arrest made against the

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violators and a case was registered against the petitioners in Crime

No.50 of 2018 for the alleged offence under Section 143 and 188 of

IPC.

3. The learned counsel appearing for the petitioners

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

right to freely assemble and 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 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 petitioners or any other members, never involved

in any unlawful assembly and there is no evidence that the

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petitioners or others restrained anybody. However, the officials of

the respondent police had beaten the petitioners and others. 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

submitted that the petitioners along with others staged protest and

there are specific allegations as against the petitioners to proceed

with the case. Further, he would submit that Section 188 of IPC is a

cognizable offence and therefore it is the duty of the police to

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.

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5. Heard the learned counsel for the petitioners and the

learned Additional Public Prosecutor appearing for the respondent.

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

along with other accused without prior permission from the

concerned authority, unlawfully gathered and protested against the

increase in the price of the bus fare. Therefore, the respondent

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

against the petitioners. Except the official witnesses, no one has

spoken about the occurrence and no one was examined to

substantiate the charges against the petitioners. 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

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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 with both.

7. The only question for consideration is that whether

the registration of case under Sections 143, 188 IPC, registered by

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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 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

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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

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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.

f) The promulgation through which, the order is made known must be by something

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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)

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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 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 petitioners and others is an unlawful

protest and does not satisfy the requirements of Section 143 of IPC.

Therefore, the FIR cannot be sustained and it is liable to be quashed.

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