Madras High Court
A.John Kumar vs State By on 6 September, 2022
CRL.O.P.No.16248 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.09.2022
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P.No.16248 of 2022
and CRL.M.P.No.9340 of 2022
A.John Kumar ... Petitioner
Vs.
State by
Sub-Inspector of Police,
Orleanpet Police Station,
Puducherry
crime No.45 of 2020 ... Respondent
PRAYER:
Criminal Original Petition filed under Section 482 of Cr.P.C, to
call for the entire proceedings pending on the file of the Sub Inspector of
Police, Orleanpet Police Station, Puducherry in crime No.45 of 2020
against the petitioner and to quash the same.
For Petitioner : Mr.S.Xavier Felix
For Respondent : Mr.J.Kumaran,
Additional Government Pleader
(Puducherry)
Page 1 of 12
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CRL.O.P.No.16248 of 2022
ORDER
This criminal original petition has been filed to quash the
F.I.R. in Crime No.45 of 2020 registered by the respondent / police for
offences under Sections 269, 188 of IPC and 51(b) of Disaster
Management Act and r/w Section 3 of Epidemic Disease Act, 1897, as
against the petitioner.
2. The case of the prosecution is that on 25.03.2020, a group of
people assembled violating the lockdown orders issued by Government
of Puducherry at Savaripadayatchi Street, Nellithope near MLA
Johnkumar's house. At that place, they found to be distributing
vegetables to the local people violating the lockdown orders. Therefore,
the respondent police registered the complaint.
3. The learned counsel appearing for the petitioner 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. He further submitted that when there was lot of
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CRL.O.P.No.16248 of 2022
members involved in the occurrence, the respondent police had
registered this case under Section 188 of IPC as against the petitioner and
others. Therefore, he sought for quashing the FIR.
4. Per contra, the learned Additional Government Pleader
(Puducherry) 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. Therefore, he vehemently opposed
the quash petition and prayed for dismissal of the same.
5. Heard Mr.S.Xavier Felix, learned counsel for the petitioner
and Mr.J.Kumaran, Additional Government Pleader (Puducherry)
appearing for the respondent.
6. On perusal of the charge, it is seen that the petitioner and
others were distributing vegetables to the local people violating the
lockdown orders. Therefore the respondent police levelled the charges
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CRL.O.P.No.16248 of 2022
including Section 188 of I.P.C. as against the petitioner and others. 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
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CRL.O.P.No.16248 of 2022
which may extend to one thousand rupees, or with
both.
7. The only question for consideration is that whether the
registration of case under Section 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
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
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CRL.O.P.No.16248 of 2022
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
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CRL.O.P.No.16248 of 2022
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
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CRL.O.P.No.16248 of 2022
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
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
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CRL.O.P.No.16248 of 2022
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 including Section
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 is liable
to be quashed for the offences under Section 188 of IPC. Further, the
complaint does not satisfy the requirements of Section 143 of IPC.
Therefore, the FIR cannot be sustained and it is liable to be quashed.
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CRL.O.P.No.16248 of 2022
10. Accordingly, the entire proceedings in Crime No.45 of 2020
registered by the respondent / police for offences under Sections 269,
188 of IPC and 51(b) of Disaster Management Act and r/w Section 3 of
Epidemic Disease Act, 1897 is quashed and the Criminal Original
Petition is allowed. Consequently, connected miscellaneous petition is
closed.
06.09.2022
Index : Yes / No (1/5)
Internet : Yes / No
Speaking/Non-speaking order
lok
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CRL.O.P.No.16248 of 2022
https://www.mhc.tn.gov.in/judis
CRL.O.P.No.16248 of 2022
G.K.ILANTHIRAIYAN, J.
lok
To
1.Sub-Inspector of Police,
Orleanpet Police Station,
Puducherry
2. The Public Prosecutor,
High Court, Madras.
CRL.O.P.No.16248 of 2022
06.09.2022
https://www.mhc.tn.gov.in/judis
