Madras High Court

K.C.Palanisamy vs State Rep. By on 9 September, 2022

                                                                              CRL.O.P(MD) No.16182 of 2022
                                                                  and CRL.M.P(MD).Nos.10714 & 10715 of 2022



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 09.09.2022

                                                         CORAM:

                                  THE HON'BLE Mr.JUSTICE G.K.ILANTHIRAIYAN

                                           CRL.O.P(MD) No.16182 of 2022
                                     and CRL.M.P(MD).Nos.10714 & 10715 of 2022

                1. K.C.Palanisamy
                2. Saminathan
                3. Kandasamy                                                                ... Petitioners
                                                            Vs.
                1. State Rep. by
                   The Inspector of Police,
                   Velayuthampalayam Police Station
                   Karur District.
                   (Crime No.264/2016)

                2. Vijayananth
                                                                                          ... Respondents

                PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C, to call
                for the records relating to the impugned Charge Sheet in S.T.C.No.1720 of
                2019 on the file of the learned Judicial Magistrate No.1, Karur and quash the
                same.
                                   For Petitioners    : Mr.M.P.Rajavelayutham
                                   For Respondents : Mr.E.Raj Thilak
                                                     Additional Public Prosecutor for R1
                                                        ****



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                                                                         CRL.O.P(MD) No.16182 of 2022
                                                             and CRL.M.P(MD).Nos.10714 & 10715 of 2022



                                                      ORDER

This Criminal Original Petition has been filed to quash the proceedings

in S.T.C.No.1720 of 2019 on the file of the learned Judicial Magistrate No.1,

Karur, thereby having been taken cognizance for the offences under Sections

143 and 188 of I.P.C. as against the petitioners.

2. The case of the prosecution is that the petitioners said to have

breached the election code of conduct by conducting the rally for canvassing

votes on 14.05.2016 at about 10.15.a.m. On the complaint given by the de facto

complainant, the first respondent police registered the complaint and filed a

charge sheet against the petitioners for the offences under Sections 143 and 188

of IPC in C.C.No.71 of 2017, on the file the learned Judicial Magistrate-II,

Karur and later, it was transferred to the learned Judicial Magistrate No.1,

Karur in S.T.C.No.1720 of 2019.

3. The learned counsel appearing for the petitioners submitted that

the petitioners are social activist and have been raising voice for the public

cause and public welfare, whenever injustice and inaction of the Government

machineries. The learned counsel further submitted that the Hon'ble Supreme https://www.mhc.tn.gov.in/judis

CRL.O.P(MD) No.16182 of 2022 and CRL.M.P(MD).Nos.10714 & 10715 of 2022

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 petitioners or any other members had never

involved in any unlawful assembly and there is no evidence that the petitioners

or others restrained anybody. 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 petitioners. Therefore, he sought for quashing the

proceedings.

4. Per contra, the learned Additional Public Prosecutor submitted that

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 https://www.mhc.tn.gov.in/judis

CRL.O.P(MD) No.16182 of 2022 and CRL.M.P(MD).Nos.10714 & 10715 of 2022

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.M.P.Rajavelayutham, 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 petitioners said to have

breached the election code of conduct by conducting the rally for canvassing

votes on 14.05.2016 at about 10.15.a.m. Therefore, the first respondent police

levelled the charges under Sections 143 and 188 of I.P.C. as against the

petitioners. Except the official witnesses, no one has spoken about the

occurrence and no one was examined to substantiate the charges against the

petitioners. 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

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CRL.O.P(MD) No.16182 of 2022 and CRL.M.P(MD).Nos.10714 & 10715 of 2022

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 registration of

case under Sections 143, 188 IPC, registered by the first 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

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CRL.O.P(MD) No.16182 of 2022 and CRL.M.P(MD).Nos.10714 & 10715 of 2022

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 petitioners 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 :-

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"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 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;

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CRL.O.P(MD) No.16182 of 2022 and CRL.M.P(MD).Nos.10714 & 10715 of 2022

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

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 https://www.mhc.tn.gov.in/judis

CRL.O.P(MD) No.16182 of 2022 and CRL.M.P(MD).Nos.10714 & 10715 of 2022

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 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

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CRL.O.P(MD) No.16182 of 2022 and CRL.M.P(MD).Nos.10714 & 10715 of 2022

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 S.T.C.No.1720 of 2019 on the file of

the learned Judicial Magistrate No.1, Karur, is quashed and the Criminal