Madras High Court
Arr.Seenivasan vs The Inspector Of Police on 22 October, 2021
CRL.O.P.(MD).No.16034 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.10.2021
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.O.P.(MD)No.16034 of 2021
and
Crl.M.P.(MD).No.8596 of 2021
1.ARR.Seenivasan
2.S.Kothandaramar ...Petitioners
Versus
1.The Inspector of Police
Virudhunagar West Police Station
Virudhunagar.
2.Sampath ...Respondents
PRAYER: Criminal Original Petition filed under Section 482 of the
Code of Criminal Procedure, to call for the records relating to the
proceedings of STC.No.2567 of 2019 on the file of the learned Judicial
Magistrate No.II, Srivilliputtur and quash the same in respect of the
petitioners/accused No.1 & 5 herein.
Page No.1 of 2
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CRL.O.P.(MD).No.16034 of 2021
For Petitioners : Mr.R.Murali
For Respondent : 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 STC.No.2567 of 2019 on the file of the learned Judicial
Magistrate No.II, Srivilliputtur, thereby having been taken cognizance
for the offences under Sections 143 and 188 of I.P.C. as against the
petitioners.
2. The case of the prosecution is that on 23.06.2018, around
12.35 p.m., the petitioners along with other accused without getting prior
permission from the concerned authority, unlawfully gathered in front of
the Coronation Hotel, Virudhunagar Town, presided by the first accused
and caused disturbance to the traffic by blocking the road for the reason
that their party president was arrested, while he attempted to seige the
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CRL.O.P.(MD).No.16034 of 2021
Raj Bhavan at Chennai. On the basis of he above said allegation, the
respondent police registered the complaint and filed against the
petitioners and others for the offence punishable under Sections 143 and
188 of IPC, in STC.No.2567 of 2019, on the file of the learned Judicial
Magistrate No.II, Virudhunagar.
3. The learned counsel appearing for the petitioners
submitted that the Hon'ble Supreme Court of India has held that theright
to freely assemble and also right to freely express once view or
constitutionally protected rights under Part III and their enjoyment can be
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 had never involved in any unlawful assembly and there is no
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CRL.O.P.(MD).No.16034 of 2021
evidence that the 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 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.
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CRL.O.P.(MD).No.16034 of 2021
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 getting prior permission from the
cncerned authority, unalwfully gathered in front of Coronation Hotel,
Virudhunagar Town, presided by the first accused and caused disturbance
to the traffic by blocking the road for the reason that their party president
was arrested, while he attempted to siege the Raj Bhavan at Chennia.
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 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,
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CRL.O.P.(MD).No.16034 of 2021
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 with
both.
7. The only question for consideration is that whether the
registration of case under Sections 143, 188 IPC, registered by the
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CRL.O.P.(MD).No.16034 of 2021
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 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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CRL.O.P.(MD).No.16034 of 2021
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
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.
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CRL.O.P.(MD).No.16034 of 2021
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
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
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CRL.O.P.(MD).No.16034 of 2021
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 172 to 188
of IPC and a Final Report can be taken
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CRL.O.P.(MD).No.16034 of 2021
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
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.
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CRL.O.P.(MD).No.16034 of 2021
M.NIRMAL KUMAR, J.
dna
10. Accordingly, the proceedings in STC.No.2567 of 2019
on the file of the learned Judicial Magistrate No.II, Srivilliputtur, is
quashed and the Criminal Original Petition is allowed. Consequently,
connected Miscellaneous Petition is closed.
22.10.2021
Index: Yes/No
Internet: Yes/No
dna
To
1.The Judicial Magistrate No.II,
Srivilluputtur.
2.The Inspector of Police
Virudhunagar West Police Station
Virudhunagar.
3.The Public Prosecutor,
High Court, Madras.
CRL.O.P.(MD)No.16034 of 2021
and
Crl.M.P.(MD).No.8596 of 2021
https://www.mhc.tn.gov.in/judis/
CRL.O.P.(MD).No.16034 of 2021
https://www.mhc.tn.gov.in/judis/
