Madras High Court
V.Marx @ Arun Kumar vs The Inspector Of Police on 1 July, 2022
Crl.O.P.No.20688 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.07.2022
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.20688 of 2020
and Crl.M.P.Nos.8738 and 8739 of 2020
V.Marx @ Arun Kumar ... Petitioner
Vs.
STATE BY:
1.The Inspector of Police,
C-2 Race Course Police Station,
Coimbatore.
2.The Sub-Inspector of Police,
C-2 Race Course Police Station,
Coimbatore. ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
to call for the entire records connected with the case in S.T.C.No.2901 of
2018 on the file of the learned Judicial Magistrate No.III, Coimbatore and
quash the same.
For Petitioner : Mr.C.Rajaguru
For Respondents : Mr.A.Gopinath
Government Advocate (Crl.Side)
1/13
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.20688 of 2020
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in S.T.C.No.2901 of 2018 on the file of the learned Judicial
Magistrate No.III, Coimbatore.
2. The case of the prosecution is that on 21.04.2018, around
11.00 a.m., the petitioner along with other accused staged protest in front
of Railway Station, Coimbatore and made awareness to the general
Public and condemning regarding the directions of Hon'ble Supreme
Court of India, in its Judgment under the Prevention of atrocity against
SC/ST Act, without getting prior permission from the concerned authority.
On the basis of the above said allegation, the respondent police registered
the complaint and filed a charge sheet against the petitioner and others for
the offences under Sections 341, 188 and 147 of IPC in S.T.C.No.2901 of
2018, on the file the learned Judicial Magistrate-III, Coimbatore.
3. The learned counsel appearing for the petitioner submitted
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Crl.O.P.No.20688 of 2020
that the petitioner is a social activist and Secretary of the Tamil Pulikal
political party, which is the party involving itself for the progressive of
education and economical status of socially marginalized and
economically weaker section of our society. The learned counsel 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 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 petitioner or any other members
had never involved in any unlawful assembly and there is no evidence
that the petitioner or others restrained anybody. However, the officials of
the respondent police had beaten the petitioner and others. When there
was lot of members involved in the protest, the respondent police had
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Crl.O.P.No.20688 of 2020
registered this case, under Sections 341, 188 and 147 of IPC as against
the petitioner and others. Therefore, he sought for quashing the
proceeding.
4. Per contra, the learned Government Advocate (Crl.Side)
submitted that the petitioner along with others staged protest and there
are specific allegations as against the petitioner 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. More over, the petitioner is an habitual
offender by committing this kind of crimes. Therefore, he vehemently
opposed the quash petition and prayed for dismissal of the same.
5. Heard Mr.C.Rajaguru, learned counsel for the petitioner and
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Crl.O.P.No.20688 of 2020
Mr..A.Gopinath, learned Government Advocate (Crl.Side) appearing for
the respondents.
6. On perusal of the charge, it is seen that the petitioner and
others staged protest in front of Railway Station, Coimbatore and made
awareness to the general Public and condemning regarding the directions
of Hon'ble Supreme Court of India, in its Judgment under the Prevention
of atrocity against SC/ST Act, without getting prior permission from the
concerned authority. Therefore, the respondent police levelled the charges
under Sections 341, 188 and 147 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 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
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Crl.O.P.No.20688 of 2020
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 341, 188 and 147 IPC, registered by
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Crl.O.P.No.20688 of 2020
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 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.
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Crl.O.P.No.20688 of 2020
8. The learned counsel for the petitioner 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
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Crl.O.P.No.20688 of 2020
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;
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
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Crl.O.P.No.20688 of 2020
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
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Crl.O.P.No.20688 of 2020
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 341,
188 and 147 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. Further, the complaint does not even state as to how the protest
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Crl.O.P.No.20688 of 2020
formed by the petitioner 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.
10. Accordingly, the proceedings in S.T.C.No.2901 of 2018 on
the file of the learned Judicial Magistrate No.III, Coimbatore, is hereby
quashed and the Criminal Original Petition stands allowed. Consequently,
connected miscellaneous petitions are closed.
01.07.2022
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
cda/mn
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Crl.O.P.No.20688 of 2020
G.K.ILANTHIRAIYAN, J.
mn
To
1.The Judicial Magistrate No.III,
Coimbatore.
2.The Inspector of Police,
C-2 Race Course Police Station,
Coimbatore.
3.The Sub-Inspector of Police,
C-2 Race Course Police Station,
Coimbatore.
4. The Public Prosecutor,
High Court, Madras.
Crl.O.P.No.20688 of 2020
and Crl.M.P.Nos.8738 and 8739 of 2020
01.07.2022
https://www.mhc.tn.gov.in/judis
