Madras High Court
I.P.Senthilkumar vs The State Represented By on 1 April, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.04.2022
CORAM
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.O.P(MD).No.14496 of 2019
1.I.P.Senthilkumar,
S/o.I.Periyasamy
2.Shanmuganathan,
S/o.Rathinasabapathi
3.Suresh,
S/o.Krishnamachari
4.Thirugnanam,
S/o.Velusamy ... Petitioners
Vs
1.The State Represented by
The Inspector of Police,
Palani Town Police Station,
Dindigul District.
(Crime No.463 of 2011)
2.K.Veluchamy,
The Revenue Divisional Officer/Returning Officer,
No.127, AC, Palani,
Dindigul District. ... Respondents
Prayer: This Criminal Original Petition has been filed under Section 482 of
Criminal Procedure Code, to call for the entire records pertaining to the case in
S.T.C.No.557 of 2011 pending on the file of the learned Judicial Magistrate,
Palani, Dindigul District and quash the same as against the petitioners.
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2
For Petitioners : Mr.R.Anand
For Respondents : Mr.A.Natarajan
State Public Prosecutor
Assisted by
Mrs.T.P.Savitha
Government Advocate
ORDER
This Criminal Original Petition has been filed, to call for the entire
records pertaining to the case in S.T.C.No.557 of 2011 pending on the file of
the learned Judicial Magistrate, Palani, Dindigul District and quash the same as
against the petitioners.
2. The case of the prosecution is that on 06.04.2011 at about
06.20 p.m., the petitioners along with their party cadres had gathered together
in six vehicles and had parked the same within the distance of 10 metres for a
long time at Palani Bus Stand Roundana to receive the star campaigner
Thiru.G.K.Vasan in respect of street corner propaganda, thereby causing
hindrance to the traffic and public. Based on the complaint given by the second
respondent, the first respondent police registered the complaint and filed a
charge sheet against the petitioners for the offences under Sections 147, 290
and 188 of IPC in S.T.C.No.557 of 2011 on the file of the learned Judicial
Magistrate, Palani, Dindigul District. The said criminal proceedings is under
challenge in this criminal original petition.
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3. The learned counsel appearing for the petitioners would submit that
the petitioners are innocent. 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 a written order from the authority. He would further submit
that the petitioners had never involved in any unlawful assembly and there is no
evidence that the petitioners restrained anybody. As there was lot of members
involved in the election campaign, the first respondent had registered the case
under Sections 147, 290 and 188 of IPC., as against the petitioners. Therefore,
he sought for quashing the proceedings.
4. Per contra, the learned Additional Public Prosecutor submitted that
on 06.04.2011 at about 06.20 p.m., the petitioners along with their party cadres
had gathered together in six vehicles and had parked the same within the
distance of 10 metres for a long time at Palani Bus Stand Roundana to receive
the star campaigner Thiru.G.K.Vasan in respect of street corner propaganda,
thereby causing hindrance to the traffic and public. He would further 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(1) (a) of
Cr.P.C. to take cognizance for the offence under Section 188 of IPC, it does not
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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.
5. Heard both sides and perused the materials available on record.
6. On a perusal of the charge as against the petitioners are concerned,
the first respondent levelled the charge under Sections 147, 290 and 188 of
IPC., as against the petitioners. It is seen from the charge that on 06.04.2011 at
about 06.20 p.m., the petitioners along with their party cadres had gathered
together in six vehicles and had parked the same within the distance of 10
metres for a long time at Palani Bus Stand Roundana to receive the star
campaigner Thiru.G.K.Vasan in respect of street corner propaganda, thereby
causing hindrance to the traffic and public. Based on the complaint given by
the second respondent, the first respondent police had registered the complaint
and filed the charge sheet against the petitioners for the offences under Sections
147, 290 and 188 of IPC. It is also seen from the charge itself that the charges
are very simple in nature and trivial.
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7. Section 188 of IPC defines disobedience to order duly promulgated
by public servant to spread infection as under:-
"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 or tends to cause
obstruction, annoyance or injury, or risk of obstruction, annoyance
or injury, to any persons 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 tends 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."
8. The only question for consideration is that whether the registration
of case under Sections 147, 290 and 188 of IPC, registered by the first
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:-
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“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.
9. The learned counsel for the petitioners, in support of his
contentions, relied upon a judgement 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 represented by the Inspector
of Police, Velayuthampalayam Police Station, Karur District, and this Court
held in Paragraph-25, as follows :-
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"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.
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
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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 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
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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."
10. He also relied upon the similar facts of the case covered under
recent Judgment of this Court in the case of Sri Raja Vs Inspector of Police,
Sivakasi Town Police Station Virudhunagar District and other in
Crl.O.P(MD).No.7922 of 2019 etc batch dated 30.08.2019 reported in (2019)
4 MLJ (Crl) 175.
11. In the case on hand, the First Information Report has been
registered by the first respondent for the offences under Sections 147, 290 and
188 of 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.
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12. Accordingly, the proceedings in S.T.C.No.557 of 2011 on the file
of the learned Judicial Magistrate, Palani, Dindigul District is quashed and this
Criminal Original Petition is allowed.
01.04.2022
(1/3)
Index : Yes/No
Internet : Yes/No
Speaking/Non-speaking order
arb/rgm
To
1.The Inspector of Police,
Palani Town Police Station,
Dindigul District.
2.K.Veluchamy,
The Revenue Divisional Officer/Returning Officer,
No.127, AC, Palani,
Dindigul District.
3.The Public Prosecutor,
High Court of Madras.
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A.D.JAGADISH CHANDIRA,J.
arb/rgm
Crl.O.P(MD).No.14496 of 2019
01.04.2022
(1/3)
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