Madras High Court

P.Muthusamy vs The State Rep. By on 19 January, 2022

                                                                                    CRL.O.P.No.22011 of 2021


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                        DATED :19.01.2022

                                                            CORAM:

                                  THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR

                                                 CRL.O.P.No.22011 of 2021

                     P.Muthusamy                                                 ... Petitioner
                                                            Versus

                     1. The State rep. by
                        The Sub-Inspector of Police,
                        Mohanur Police Station,
                        Namakkal District
                        Crime No.554 of 2017

                     2. Mr.A.Chandran,
                        Sub-Inspector of Police,
                        Mohanur Police Station,
                        Namakkal District.                                       ... Respondents

                     PRAYER: Criminal Original Petition filed under Section 482 of the Code
                     of Criminal Procedure, to call for the records pertaining to the impugned
                     FIR in Crime No.554 of 2017 on the file of the first respondent herein and
                     quash the same.

                                       For Petitioner       :    Mr. S.Senthil

                                       For Respondents      :    Mr. E.Raj Thilak
                                                                 Additional Public Prosecutor
                     Page No.1 of 12


https://www.mhc.tn.gov.in/judis
                                                                                CRL.O.P.No.22011 of 2021




                                                          ORDER

This Criminal Original Petition has been filed to quash the

proceedings in Crime No.554 of 2017 on the file of the Mohanur Police

Station, Namakkal District and quash the same.

2. The case of the prosecution is that on 22.11.2017, at about

10.10 a.m., the petitioner along with 25 persons, conducted protest against

the raising of prices of essential commodities without getting prior

permission from the concerned authority. They were obstructing the free

flow of people in that area. In order to ensure the free movement of

people, they were arrested and a case was registered by the respondent

police in Crime No.554 of 2017 for the offences under Sections 143 and

188 IPC.

3. The learned counsel appearing for the petitioner submitted

that the petitioner and the other accused were falsely implicated in this

case for political reason as a political vendetta. In order to draw the

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attention of the Central Government, the petitioner along with several

others had protested against raising of prices of essential commodities. The

learned counsel further submitted that the Hon'ble Supreme Court of India

has held that the right to assemble and to freely express once view is a

constitutionally protected right under Part III of Constitution of India. He

further submitted that it is the duty of the Government to protect the right

of freedom, speech and assemble, which is essential characteristics of

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 any order from the authority. He further submitted that

the petitioner or any other members had never involved in any unlawful

assembly and there is no evidence to show that the petitioner or others

restrained the public. When several members participated in the protest,

the respondent police registered the case, under Section 341, 143 and 188

of IPC as against the petitioner and few others. Therefore, he sought for

quashing the proceeding.

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4. Per contra, the learned Additional Public Prosecutor

submitted that the petitioner along with other staged protest without prior

permission from the concerned authority, tried to obstruct the free flow of

people and there are specific allegations as against the petitioner to

proceed with the investigation. Further, he would submit that as per

Section 188 of IPC, it 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.

5. Heard the learned counsel for the petitioner and learned

Additional Public Prosecutor appearing for the first respondent.

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

others staged protest, without prior permission from the concerned

authority, tried to obstruct the free flow of people. Therefore, the

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respondent police levelled the charges under Sections 143 and 188 of

I.P.C. as against the petitioner and others. 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

charges itself that the charges are very simple in nature and trivial.

7. For better appreciation, Section 188 of IPC., 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 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

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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.

8. The only question for consideration is that, whether the case

under Sections 143, 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 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

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the public servant concerned or of some other public servant to whom he is administratively subordinate;...”

In view of the above, 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 petitioner 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, whereby, 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.

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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 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 done openly and in public and private information will not be a promulgation. The order must be notified or

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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) of Cr.P.C.

10. 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

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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, in the complaint, it is not stated as to how the protest formed by

the petitioners and others is an unlawful protest and the complaint does not

satisfy the requirements of Section 143 of IPC. The occurrence is said to

have taken place in public place in public view, but, strangely, no public

has given any complaint, examined as witness in this case. Therefore, the

final report cannot be sustained and it is liable to be quashed.