Madras High Court

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

                                                                     CRL.O.P.(MD)No.16035 of 2021


                      BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED : 22.10.2021

                                                   CORAM:

                                  THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR


                                         CRL.O.P.(MD)No.16035 of 2021
                                                    and
                                         CRL.M.P.(MD)No.8597 of 2021

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

                                                      Versus

                     1.State rep. by the
                       The Inspector of Police
                       Pettai Police Station
                       Tirunelveli City,
                       Tirunelveli.
                       (Crime No.481 of 2020)

                     2.C.Ezhilarasi
                       The Inspector of Police,
                       Pettai 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 16


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                                                                          CRL.O.P.(MD)No.16035 of 2021


                     impugned FIR in Crime No.481 of 2018 on the file of the Pettai
                     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.481 of 2018 on the file of the

Pettai Police Station, Tirunelveli City, Tirunelveli District as against

the petitioners.

2. The case of the prosecution is that on 04.06.2020,

when lockdown was in force due to Corono Pandemic, the

petitioners, who are political persons, along with 50 persons without

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any permission and without following social distancing welcomed a

political person at Gandhinagar Bus Stop. Hence a case has been

registered against the petitioners and others in Crime No.481 of

2020 for the offences under Sections 188 and 269 of IPC and 3 of

Epidemic Disease Act, 1897.

3. The learned counsel appearing for the petitioners

submitted that in order to register a case under Section 269 of IPC,

the accused person must do any unlawful or negligent act, which

likely to spread the infection of any disease dangerous to life and

whereas in the present case, the petitioners were not tested positive

and there is no reason to believe that they are likely to spread the

infection. He further submitted that the Hon'ble Supreme Court of

India has held that the right to freely assemble and also right to

freely express once view, 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

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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 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, 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 assembled and

welcomed a political person and there are specific allegations as

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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

when Covid-19 Pandemic restriction was in force, the petitioners

along with other people assembled in large numbers, which would

certainly result in spreading of the Corona Virus. Therefore, he

vehemently opposed the quash petition and prayed for dismissal of

the same.

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

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concerned authority, unlawfully gathered. Therefore, the respondent

police levelled the charges under Sections 188 and 269 of IPC and 3

of Epidemic Disease Act, 1897 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, 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

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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 269, 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

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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.

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

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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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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

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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 circulation.

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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 188 and 269 of IPC and 3 of Epidemic Disease Act, 1897.

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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

petitioners are not tested positive for Covid-19 and they state that

they maintain social distance, hence, the offences under Section 269

of IPC and 3 of Epidemic Disease Act, 1897 are also liabled to be

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

quashed.