Madras High Court
Ashok vs The State By on 5 September, 2022
CRL.O.P.No.20893 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.09.2022
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P.No. 20893 of 2022
and CRL.M.P.No. 13679 of 2022
1.Ashok
2.Kumarappa
3.Periyar Siddhan
4.Kuppan
5.Sekar
6.Sunil Kumar
7.Dalit Kamal
8.Samaran
9.Setu Sherif
10.Murugan
11.Deepan
12.Siva
13.Sasikumar
14.Vignesh
15.Saravanan
16.Kannan .. Petitioners
Versus
1.The State by
The Inspector of Police,
E1 Mylapore Police Station,
Chennai – 600 004
2.S.Pandiyan .. Respondents
1/12
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CRL.O.P.No.20893 of 2022
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
to call for the records pertaining to C.C.No.2408 of 2018 on the file of
the learned XVIII Metropolitan Magistrate Court, Saidapet at Chennai
and quash the same.
For Petitioner : Mr.C.Ganesh Pandian
For Respondent: Mr.M.Mohamed Riyaz
Additional Public Prosecutor
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in C.C.No.2408 of 2018 on the file of the learned XVIII
Metropolitan Magistrate Court, Saidapet at Chennai, thereby having been
taken cognizance for the offences under Sections 143,149,188,294(b),
IPC r/w. 75 The City Police Act as against the petitioners.
2. The case of the prosecution is that on 03.08.2017, around
10.15am,, the petitioners along with other accused staged protest towards
the banning NEET against the State Government and Central
Government, 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 petitioners
and others.
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CRL.O.P.No.20893 of 2022
3. The learned counsel appearing for the petitioners submitted that
the petitioners have been raising voice 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, the
petitioner along with several members had protested to ban NEET. 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
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CRL.O.P.No.20893 of 2022
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 registered this case as against the
petitioner and others. Therefore, he sought for quashing the proceeding.
4. Per contra, the learned Additional Public Prosecutor submitted
that the petitioners along with others staged protest and there are specific
allegations as against the petitioners 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 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.C.Ganesh Pandian, learned counsel for the petitioners
and Mr.E.Raj Thilak, learned Additional Public Prosecutor appearing for
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CRL.O.P.No.20893 of 2022
the respondent.
6. On perusal of the charge, it is seen that the petitioner and others
staged protest towards banning of NEET, without getting prior
permission from the concerned authority. Therefore the respondent
police levelled the charges 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
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
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CRL.O.P.No.20893 of 2022
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 143,149,188,294(b), IPC r/w. 75 of
the City Police Act, 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 the public servant concerned
or of some other public servant to whom he is administratively
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CRL.O.P.No.20893 of 2022
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
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CRL.O.P.No.20893 of 2022
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 act or to take
certain order with certain property in his possession and under his
management, has disobeyed;
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CRL.O.P.No.20893 of 2022
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 Inspector
General of the various Zones are directed to immediately
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CRL.O.P.No.20893 of 2022
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
143,149,188,294(b), IPC r/w. 75 The City Police Act. 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 and it is liable to be quashed.
10. Accordingly, the proceedings in C.C.No.2408 of 2018 on the
file of the learned XVIII Metropolitan Magistrate Court, Saidapet, is
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CRL.O.P.No.20893 of 2022
quashed and the Criminal Original Petition is allowed. Consequently,
connected miscellaneous petition is closed.
05.09.2022
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
dhk
To
1. The XVIII Metropolitan Magistrate Court
Saidapet , Chennai
2. The Inspector of Police,
E1 Mylapore Police Station,
Chennai – 600 004
3. The Public Prosecutor,
High Court, Madras.
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CRL.O.P.No.20893 of 2022
G.K.ILANTHIRAIYAN, J.
dhk
CRL.O.P.No.20893 of 2022
05.09.2022
https://www.mhc.tn.gov.in/judis
