Madras High Court

Abdul Rahman vs The Inspector Of Police on 31 January, 2022

                                                                                CRL.O.P.No.1564 of 2022


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 31.01.2022

                                                        CORAM:

                                   THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR

                                                 CRL.O.P.No.1564 of 2022
                                                          &
                                                 CRL.M.P.No.635 of 2022


                     Abdul Rahman                                                     ... Petitioner

                                                          Versus


                     The Inspector of Police,
                     Mangalampet Police Station,
                     Crime No.931 of 2020,
                     Cuddalore District.                                           ... Respondent



                     PRAYER: Criminal Original Petition filed under Section 482 of the
                     Code of Criminal Procedure, 1973, to call for the records pertaining to
                     the FIR in Crime No.931 of 2020, on the file of the respondent and quash
                     the same by allowing the criminal original petition.


                                       For Petitioner   : Mr.R.Prabakar

                                       For Respondent   : Mr.E.Raj Thilak
                                                          Additional Public Prosecutor


                     Page No.1 of 12
https://www.mhc.tn.gov.in/judis
                                                                              CRL.O.P.No.1564 of 2022


                                                       ORDER

This Criminal Original Petition has been filed to quash

the proceedings in FIR in Crime No.931 of 2020 on the file of the

respondent Police.

2. The case of the prosecution is that on 21.07.2020,

when the respondent Police was in Covid-19 duty monitoring the

movements in order to prevent the spread of the disease, the

petitioner without knowing the seriousness of the disease and

wearing mask allegedly violating the order promulgated under

Section 144 Cr.P.C. Hence a case has been registered against the

petitioner in Crime No.931 of 2020 for the offences under Sections

188 and 271 of IPC.

3. The learned counsel appearing for the petitioners

submitted that in order to register a case under Section 271 of IPC,

the accused person ought to have violated the rule of quarantine for

putting the vessel and its intercourse. But the averments do not

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attract any of the ingredients mentioned in Section 271 of IPC.

Further, 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 had never involved in any unlawful assembly.

Therefore, he sought for quashing the proceeding.

4. Per contra, the learned Additional Public Prosecutor

submitted that the petitioner without knowing the seriousness of

disease, roaming freely without wearing mask. 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

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

5. Heard the learned counsel for the petitioners and the

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learned Additional Public Prosecutor appearing for the respondent.

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

without wearing mask came outside. Therefore, the respondent

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

against the petitioner. 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

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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 271 and 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

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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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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

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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.

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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 271 of IPC. He is not a competent person to

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First Information Report is liable to be quashed for the offences

under Section 188 of IPC. Further, the petitioner is not tested

positive for Covid-19 and hence, the offences under Section 271 is

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

it is liable to be quashed.

10. Accordingly, the proceedings in FIR in Crime

No.931 of 2020 on the file of the Mangalampet Police Station,

Cuddalore District, is quashed and the Criminal Original Petition is