Madras High Court
N. Karthick vs State Rep By on 7 September, 2022
CRL.O.P.No. 18495 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.09.2022
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P.No. 18495 of 2022
and CRL.M.P.Nos.12313 & 12351 of 2022
N. Karthick ... Petitioner
Vs.
1. State rep by
The Inspector of Police,
Singanallur Police Station,
Coimbatore
(Crime No.402 of 2018)
2. M. Muneeswaran ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
to call for the records in S.T.C.No.4307 of 2021 on the file of the learned
Judicial Magistrate No.I, Coimbatore till the disposal of this Original
Petition.
For Petitioner : Mr.G.R.Deepak
For R1 : Mr.E.Raj Thilak
Additional Public Prosecutor
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in S.T.C.No.4307 of 2021 on the file of the learned Judicial
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CRL.O.P.No. 18495 of 2022
Magistrate No.I, Coimbatore, thereby having been taken cognizance for
the offences under Sections 147, 188 and 285 of I.P.C. as against the
petitioner.
2. The case of the prosecution is that on 18.04.2018 at around
15.45 p.m. the petitioner along with other accused had assembled before
Singanallur Bus Stand, Coimbatore and raised slogan to arrest H.Raja,
who had made defamatory slogan against the leader of DMK 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 petitioner and others for the offences
under Sections 147, 188 and 285 of IPC in S.T.C.No.4307 of 2021, on
the file the learned Judicial Magistrate No.I, Coimbatore.
3. The learned counsel appearing for the petitioner submitted
that the petitioner is a social activist and has 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 raised
slogan to arrest H.Raja, who had made defamatory slogan against the
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CRL.O.P.No. 18495 of 2022
leader of DMK. 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 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, under Section 147, 188 and 285 of IPC as against the petitioner
and others. 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
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CRL.O.P.No. 18495 of 2022
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 Mr.G.R.Deepak, learned counsel for the petitioner
and Mr.E. Raj Thilak, learned Additional Public Prosecutor appearing for
the first respondent.
6. On perusal of the charge, it is seen that the petitioner and
others raised slogan to arrest H.Raja, who had made defamatory slogan
against the leader of DMK without getting prior permission from the
concerned authority. Therefore the respondent police levelled the
charges under Sections 147, 188 and 285 of I.P.C. as against the
petitioner and others. Except the official witnesses, no one has spoken
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CRL.O.P.No. 18495 of 2022
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 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
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CRL.O.P.No. 18495 of 2022
registration of case under Sections 147, 188 and 285 of 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.
8. The learned counsel for the petitioner relied upon a
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CRL.O.P.No. 18495 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
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
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CRL.O.P.No. 18495 of 2022
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
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
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CRL.O.P.No. 18495 of 2022
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 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
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CRL.O.P.No. 18495 of 2022
registered by the respondent police for the offences under Sections 147
188 and 285 of 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 147 and 285 of IPC. Therefore, the
final report cannot be sustained and it is liable to be quashed.
10. Accordingly, the proceedings in S.T.C.No.4307 of 2021 on
the file of the learned Judicial Magistrate No.I, Coimbatore is hereby
quashed and the Criminal Original Petition is allowed. Consequently,
connected miscellaneous petitions are closed.
07.09.2022
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
Lpp
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CRL.O.P.No. 18495 of 2022
To
1. The Judicial Magistrate No.I,
Coimbatore.
2.The Inspector of Police,
Singanallur Police Station,
Coimbatore
3. The Public Prosecutor,
High Court, Madras.
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CRL.O.P.No. 18495 of 2022
G.K.ILANTHIRAIYAN, J.
Lpp
CRL.O.P.No. 18495 of 2022
and CRL.M.P.Nos.12313 & 12351 of 2022
07.09.2022
https://www.mhc.tn.gov.in/judis
