Madras High Court
Naseer Khan vs The State Rep. By on 29 June, 2022
CRL.O.P.No.18803 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P.No.18803 of 2020
and
Crl.M.P.No.7435 of 2020
1.Naseer Khan
2.Vashim
3.Javeeth
4.Imthiyash ... Petitioners
Vs.
1.The State Rep. by
The Inspector of Police,
Vaniyambadi Town Police Station,
Thirupathur District – 635 751.
(Crime.No.80 of 2020)
2.Sargunakumar,
Village Administrative Officer,
Amurpettain, Vaniyambadi,
Thirupathur District-635751. ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C.
praying to call for the records related to the First Information Report in Crime
No.80 of 2020, dated 15.02.2020, on the file of the 1st respondent police and
quash the same.
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CRL.O.P.No.18803 of 2020
For Petitioner : Mr.A.Mohammed Sayeed
For Respondents
For R1 : Mr.A.Gopinath
Government Advocate (Crl. Side)
For R2 : No appearance.
ORDER
This Criminal Original Petition has been filed to quash the FIR in Crime
No.20 of 2020, on the file of the 1st respondent police, for the offences
punishable under Sections 143, 188 and 341 of I.P.C. as against the petitioner.
2. The case of the prosecution is that on 14.02.2020, the petitioners and
along with other accused persons were protested in the public road against the
implementation of Citizenship Amendment Act without getting prior
permission from the concerned authority. On the basis of the aforesaid
allegation the respondent police registered the complaint and filed FIR in
Crime No.80 of 2020 as against the petitioners for the offences punishable
under Sections 143, 188 and 341 of IPC, and the same is pending for filing of
charge sheet.
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CRL.O.P.No.18803 of 2020
3.1. The learned counsel appearing for the petitioners submitted that
these petitioners are social activists and have been raising voices for the public
cause and public welfare, whenever injustice and inaction of the government
machineries. In order to draw the attention of the Central and State
Governments, these petitioners along with several members had protested
against the implementation of the Citizenship Amendment Act and further
demanded the Central Government to withdraw the said Act, in the public
road.
3.2. The learned counsel for the petitioner 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. He further submitted that these petitioners or any other members had
never involved in any unlawful assembly and there is no evidence that these
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CRL.O.P.No.18803 of 2020
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, under Section 143, 188 and 341 of IPC as against the petitioners and
others. Therefore, he sought for quashing the proceeding.
4. Per contra, the learned Government Advocate (Crl.Side) submitted
that the petitioners along with others staged protests and there are specific
allegations as against the petitioners to proceed with the trial. Further, he
submitted 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. Moreover, the petitioners are habitual offenders by committing these
kind of crimes. Therefore, he vehemently opposed the quash petition and
prayed for dismissal of the same.
5. Heard Mr.A.Mohammed Sayeed, learned counsel for the petitioners
and Mr.A.Gopinath, learned Government Advocate (Crl. Side) appearing for
the 1st respondent police.
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CRL.O.P.No.18803 of 2020
6. On perusal of the charge, it is seen that the petitioners and along with
others were protested in the public road against the implementation of
Citizenship Amendment Act, without getting prior permission from the
concerned authority. Therefore, the respondent police levelled the charges
under Sections 143, 188 and 341 of I.P.C. as against the petitioners 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.
In this regard, it is relevant to extract Section 188 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
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CRL.O.P.No.18803 of 2020
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 143, 188 and 341 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 reads as follows;-
“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
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CRL.O.P.No.18803 of 2020
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 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
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CRL.O.P.No.18803 of 2020
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;
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
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CRL.O.P.No.18803 of 2020
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 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.
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CRL.O.P.No.18803 of 2020
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 143,188 and 341 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 formed by the petitioners and others is an
unlawful protest and does not satisfy the requirements of Section 143 of IPC.
Therefore, the final report cannot be sustained as against the petitioners and it
is liable to be quashed.
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CRL.O.P.No.18803 of 2020
10. Accordingly, the proceedings in FIR in Crime No.80 of 2020, on the
file of the 1st respondent police is quashed and the Criminal Original Petition is
allowed. Consequently, connected miscellaneous petition is closed.
29.06.2022
Internet : Yes / No
Index : Yes / No
Speaking / Non Speaking order
ata
To
1.The Inspector of Police,
Vaniyambadi Town Police Station,
Thirupathur District – 635 751.
2. The Public Prosecutor
Madras High Court,
Chennai.
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CRL.O.P.No.18803 of 2020
G.K.ILANTHIRAIYAN, J.
ata
CRL.O.P.No.18803 of 2020
29.06.2022
https://www.mhc.tn.gov.in/judis
