Madras High Court
A.John Kumar vs State By on 6 September, 2022
CRL.O.P.No.16251 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.16251 of 2022
and CRL.M.P.Nos.9341 & 9343 of 2022
A.John Kumar ... Petitioner
Vs.
1.State by
Sub Inspector of Police,
Orleanpet Police Station,
Puducherry
crime No.109 of 2014
2.Sendhilnathan ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
to call for the entire proceedings pending on the file of the learned
Judicial Magistrate-II, Puducherry in STC.No.78 of 2016 against the
petitioner and quash the same.
For Petitioner : Mr.S.Xavier Felix,
For Respondents
For R1 : Mr.J.Kumaran
Additional Government Pleader
(Puducherry)
Page 1 of 12
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CRL.O.P.No.16251 of 2022
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in STC.No.78 of 2016 on the file of the learned Judicial
Magistrate-II, Puducherry, thereby having been taken cognizance for the
offence under Section 188 of I.P.C. In crime No.109 of 2014 as against
the petitioner.
2. The case of the prosecution is that on 17.04.2014 the defacto
complainant lodged complaint alleging that after the model code of
conduct of the Election Commission of India came into force, a political
news item in the name of the petitioner was telecasted as an
advertisement in the form of scrolling without any authorization by the
candidate for the political party. On the basis of the above said allegation,
the first respondent / police registered the complaint and filed a charge
sheet against the petitioner and others for the offences under Section 188
of IPC in STC.No.78 of 2016 on the file of the learned Judicial
Magistrate-II, Puducherry.
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CRL.O.P.No.16251 of 2022
3. 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.
4. Heard Mr.S.Xavier Felix, learned counsel for the petitioner
and Mr.J.Kumaran, learned Additional Government Pleader(Puducherry)
appearing for the first respondent / police.
5. On perusal of the charge, it is seen that after the model code
of conduct of the Election Commission of India came into force, a
political news item in the name of the petitioner was telecasted as an
advertisement in the form of scrolling without any authorization by the
candidate for the political party. Therefore the respondent police levelled
the charges under Section 188 of I.P.C. as against the petitioner. Section
188 reads as follows:
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CRL.O.P.No.16251 of 2022
“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.
6. The only question for consideration is that whether the
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CRL.O.P.No.16251 of 2022
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
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.
7. The learned counsel for the petitioner relied upon a
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CRL.O.P.No.16251 of 2022
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
from committing an offence under Section 188 of
IPC.
c) The role of the Police Officer will be
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CRL.O.P.No.16251 of 2022
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
iv)that such disobedience causes or tends to
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CRL.O.P.No.16251 of 2022
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
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CRL.O.P.No.16251 of 2022
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.
8. In the case on hand, the First Information Report has been
registered by the respondent police for the offences under Section 188
IPC. He is not a competent person to register FIR for the offences under
Section 188 of IPC. As such, the final report is liable to be quashed for
the offences under Section 188 of IPC. Therefore, the final report cannot
be sustained and it is liable to be quashed.
9. Accordingly, the proceedings in STC.No.78 of 2016 on the
file of the learned Judicial Magistrate-II, Puducherry, is quashed as
against the petitioner and the Criminal Original Petition is allowed.
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CRL.O.P.No.16251 of 2022
Consequently, connected miscellaneous petitions are closed.
06.09.2022
Index : Yes / No (4/5)
Internet : Yes / No
Speaking/Non-speaking order
lok
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CRL.O.P.No.16251 of 2022
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CRL.O.P.No.16251 of 2022
G.K.ILANTHIRAIYAN, J.
lok
To
1.The learned Judicial Magistrate-II,
Puducherry
2.Sub Inspector of Police,
Orleanpet Police Station,
Puducherry
3. The Public Prosecutor,
High Court, Madras.
CRL.O.P.No.16251 of 2022
06.09.2022
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