Madras High Court
Vijayarajan vs The Inspector Of Police on 22 November, 2022
Crl.O.P.(MD) No.19107 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.11.2022
CORAM
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl.O.P(MD)No.19107 of 2022
and
Crl.M.P.(MD) Nos.12910 and 12911 of 2022
1.Vijayarajan
2.S.S.Balan
3.M.Chellam
4.M.Ganesan
5.K.Elango
6.P.Gopinath
7.S.Veldeva
8.G.Gowtham Bharathi ...Petitioners
vs.
1.The Inspector of Police,
South Gate Police Station,
Madurai City.
Crime No.333 of 2018
2.P.Kannan ...Respondents
1/11
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Crl.O.P.(MD) No.19107 of 2022
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
praying to call for the records pertaining to the case in STC.No.4719 of
2021 on the file of the learned Judicial Magistrate No.I, Madurai and quash
the same insofar as the Petitioners/accused Nos.2 to 6 and 8 to 10 are
concerned.
For Petitioners : Mr.K.Pandiarajan
For R1 : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in S.T.C.No.4719 of 2021 on the file of the learned Judicial
Magistrate No.I, Madurai.
2.When the case came up for hearing, the learned Counsel for the
Petitioner would submit that the subject matter is covered, as per the order
made by this Court in Crl.O.P.(MD) No.12612 of 2022 (Annadurai Vs. The
Inspector of Police, South Gate Police Station, Madurai and another)
dated 06.09.2022, wherein it had been stated as follows:-
“This Criminal Original Petition has been filed to quash the
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Crl.O.P.(MD) No.19107 of 2022
proceedings in STC.No.4719 of 2021 on the file of the learned Judicial
Magistrate Court No.I, Madurai, thereby having been taken cognizance
for the offences under Sections 143, 188 & 285 of I.P.C. as against the
petitioner.
2.The case of the prosecution is that on 16.05.2018, the second
respondent along with his personnels were on usual patrol on nearing
Chinnakadai Street, they saw the members of the Communist Party of
India (CPI) had assembled under the leadership of A1 for protesting
against Tirumunal Congress Government (TMC) led by Mamata
Banerjee. At the time of protest, the accused persons without following
the proceedings of Assistant Commissioner said to have disturbed the
public by burning the bit notice containing the image of the Mamata
Banerjee. Based on the complaint, the respondents / police registered
the complaint and filed a charge sheet against the petitioner and others
for the offences under Sections 143, 188 & 285 of I.P.C in STC.No.4719
of 2021 on the file of the learned Judicial Magistrate Court No.I,
Madurai.
3.The learned counsel appearing for the petitioner submitted that
protesting, criticizing and expressing grievance against a political party
is a democratic right which do not constitute an offence under Section
143 of IPC. 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
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Crl.O.P.(MD) No.19107 of 2022
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. Therefore, he sought for
quashing the proceeding.
4.Per contra, the learned Additional Public Prosecutor 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, the learned counsel for the petitioner and the learned
Additional Public Prosecutor appearing for the respondents.
6.On perusal of the charge, it is seen that except the official
witnesses, no one has spoken about the occurrence and no one was
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Crl.O.P.(MD) No.19107 of 2022
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 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 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
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Crl.O.P.(MD) No.19107 of 2022
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.
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
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Crl.O.P.(MD) No.19107 of 2022
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 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
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Crl.O.P.(MD) No.19107 of 2022
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 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
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Crl.O.P.(MD) No.19107 of 2022
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 respondents / police for the offences also under
Sections 143 and 188 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 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 STC.No.4719 of 2021 on the
file of the learned Judicial Magistrate Court No.I, Madurai, is quashed
as against the petitioner and the Criminal Original Petition is allowed.
Consequently, connected miscellaneous petitions are closed.”
3.Following the same, this Court is inclined to allow this petition.
Accordingly, this Criminal Original Petition is allowed. The case in
S.T.C.No.4719 of 2021 on the file of the learned Judicial Magistrate No.I,
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Crl.O.P.(MD) No.19107 of 2022
Madurai, is quashed. Consequently, connected Miscellaneous Petitions are
closed.
Index :Yes/No 22.11.2022
Internet :Yes/No
mm
To
1.The Judicial Magistrate No.I,
Madurai.
2.The Inspector of Police,
South Gate Police Station,
Madurai City.
3. The Additional Public Prosecutor
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD) No.19107 of 2022
SATHI KUMAR SUKUMARA KURUP, J.
mm
Crl.O.P(MD)No.19107 of 2022
22.11.2022
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