Madras High Court
Umapathy vs The State Rep By on 8 September, 2022
CRL.O.P.No.21367 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.09.2022
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P.No.21367 of 2022
and CRL.M.P.Nos.13904 & 13906 of 2022
1.Umapathy
2. Udhayakumar
3. Prasad
4. Sukumaran
5. Karthick
6. Prakash ... Petitioner
Vs.
1. The State rep by
The Inspector of Police,
D-3, Ice House Police Station,
Chennai - 600 005.
2. G.Manikumar
Sub-Inspector of Police,
D-3, Ice House Police Station,
Chennai - 600 005. ... Respondent
1/14
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CRL.O.P.No.21367 of 2022
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
to call for the records in C.C.No.1941 of 2019 on the file of the learned II
Metropolitan Magistrate Court at Egmore and to quash the same.
For Petitioner : Mr.R.Thirumoorthy
For R1 : Mr.E.Raj Thilak
Additional Public Prosecutor
ORDER
This Criminal Original Petition has been filed to quash the
proceedings inC.C.No.1941 of 2019 on the file of the learned II
Metropolitan Magistrate Court at Egmore thereby having been taken
cognizance for the offences under Sections 143 and 188 of I.P.C. as
against the petitioner.
2. The case of the prosecution is that on 16.09.2018 at about
05.15.p.m., when the respondents were on duty at NKT Girls Hr. Sec.
School, Besant Nagar for providing police protection to the Vinayagar
procession to immerse the idol, the petitioners along with other accused
formed themselves in an unlawful assembly without prior permission and
thereby raised slogans against the chemical used idols which causes
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CRL.O.P.No.21367 of 2022
damages to the natural resource in the protest of Vinayagar procession.
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 143 and 188 of IPC in C.C.No.1941 of
2019, on the file the learned II Metropolitan Magistrate, Court at
Egmore.
3. The learned counsel appearing for the petitioner submitted
that the petitioner is a social activist and they were affiliated in social
spirited organization namely D.V.K (Dravidar Viduthalai Kazhagam) 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 protested towards the chemical used idols
which causes damage to the natural resource in the protest of Vinayagar
procession. 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
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CRL.O.P.No.21367 of 2022
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 143 and 188 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
are specific allegations as against the petitioner to proceed with the trial.
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CRL.O.P.No.21367 of 2022
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. R.Thirumoorthy, learned counsel for the
petitioners 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 staged protest towards the chemical used idols which causes
damages to the natural resource in the protest of Vinayagar procession,
without getting prior permission from the concerned authority. Therefore
the respondent police levelled the charges under Sections 143 and 188 of
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CRL.O.P.No.21367 of 2022
I.P.C. 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
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
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CRL.O.P.No.21367 of 2022
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
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
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CRL.O.P.No.21367 of 2022
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 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.
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CRL.O.P.No.21367 of 2022
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
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CRL.O.P.No.21367 of 2022
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 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
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CRL.O.P.No.21367 of 2022
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
registered by the respondent police for the offences under Sections 143
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CRL.O.P.No.21367 of 2022
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 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.1941 of 2019 on the
file of the learned II Metropolitan Magistrate Court at Egmore, is
quashed and the Criminal Original Petition is allowed. Consequently,
connected miscellaneous petition is closed.
08.09.2022
Index : Yes / No
Speaking/Non-speaking order
Sma
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CRL.O.P.No.21367 of 2022
To
1. II Metropolitan Magistrate Court,
Egmore.
2. The Inspector of Police,
D-3, Ice House Police Station,
Chennai - 600 005.
3. II Metropolitan Magistrate Court,
Egmore,
3. The Public Prosecutor,
High Court, Madras.
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CRL.O.P.No.21367 of 2022
G.K.ILANTHIRAIYAN, J.
Sma
CRL.O.P.No.21367 of 2022
and
CRL.M.P.Nos.13904 & 13906 of 2022
08.09.2022
https://www.mhc.tn.gov.in/judis
