Madras High Court
Durai Boy @ Syed Yusub vs The Inspector Of Police on 12 September, 2022
CRL.O.P.No.21823 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.09.2022
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P.No.21823 of 2022
1.Durai Boy @ Syed Yusub
2.Ravikumar
3.Sethupathi
4.Selvaraj ... Petitioners
Vs.
The Inspector of Police,
Pollachi Bazzar Police Station,
Coimbatore District.
(Crime No.56/2017). ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
to call for the records and quash the proceedings S.T.C.No.1159 of 2018
pending on the file of the learned Judicial Magistrate Court No-II,
Pollachi.
For Petitioners : Mr.P.Muthamizhselvakumar
For Respondent : Mr.E.Raj Thilak
Additional Public Prosecutor
Page 1 of 16
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CRL.O.P.No.21823 of 2022
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in S.T.C.No.1159 of 2018 on the file of the Judicial
Magistrate Court No-II, Pollachi, thereby having been taken cognizance
for the offences under Sections 143, 341 and 188 of I.P.C. as against the
petitioner.
2. The case of the prosecution is that on 06.04.2017, the
petitioners along with other accused staged protest towards functioning
of the AC liquor bar and raised slogans against the functioning of the bar
and demanded to close the liquor bar, 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 petitioners and others for the offences under Sections 143,
341 and 188 of IPC in S.T.C.No.1159 of 2018, on the file the Judicial
Magistrate Court No-II, Pollachi.
3. The learned counsel appearing for the petitioners submitted
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CRL.O.P.No.21823 of 2022
that the petitioners are social activists and they have 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 State
Government, the petitioners along with several members had protested
towards functioning of the AC liquor bar and raised slogans against the
functioning of the bar and demanded to close the liquor bar. 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
petitioners or any other members had never involved in any unlawful
assembly and there is no evidence that the petitioners or others restrained
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CRL.O.P.No.21823 of 2022
anybody. However, the officials of the respondent police had beaten the
petitioners and others. When there was lot of members involved in the
protest, the respondent police had registered this case, under Section 143,
341 and 188 of IPC as against the petitioners and others. Therefore, he
sought for quashing the proceeding.
4. Per contra, the learned Additional Public Prosecutor
submitted that the petitioners along with others staged protest and 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 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.P.Muthamizhselvakumar, learned counsel for the
petitioners and Mr.E.Raj Thilak, learned Additional Public Prosecutor
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CRL.O.P.No.21823 of 2022
appearing for the respondent.
6. On perusal of the charge, it is seen that the petitioners and
others staged protest towards the functioning of the AC liquor bar,
without getting prior permission from the concerned authority. Therefore
the respondent police levelled the charges under Sections 143, 341 and
188 of I.P.C. as against the petitioners and others. 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 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
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CRL.O.P.No.21823 of 2022
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, 341 & 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-
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CRL.O.P.No.21823 of 2022
(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. It is to be noted that while exercising the power under Section
482, the Court should be slow, at the same time, if the Court finds that
from the entire materials collected by the prosecution taken as a whole,
would not constitute any offence, in such situation, directing the parties
to undergo ordeal of trial will be a futile exercise and it will infringe the
right of the persons and in this regard, the Apex Court in State of
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CRL.O.P.No.21823 of 2022
Haryana and others Vs. Bhajan Lal and Others reported in 1992 Supp
(1) Supreme Court Cases 335, has been held as follows :
“........
(a) where the allegations made in the First
Information Report or the complaint, even if they are
taken at their face value and accepted in their entirety do
not prima facie constitute any offence or make out a case
against the accused;
(b) where the allegations in the First Information
Report and other materials, if any, accompanying the
F.I.R. do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in
the FIR or -complaint and the evidence collected in
support of the same do not disclose the commission of
any offence and make out a case against the accused;
(d) where the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non~cognizable offence, no investigation is permitted by
a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code;
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CRL.O.P.No.21823 of 2022
(e) where the allegations made in the FIR or
complaint are so absurd and inherently improbable on the
basis of which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding
against the accused;
(f) where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.”
9. It is also relevant to note the definition of Unlawful
Assembly:
“Unlawful Assembly-
An assembly of five or more persons is designated
an ?unlawful assembly?, if the common object of the
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CRL.O.P.No.21823 of 2022
persons composing that assembly is -
(i) to overawe by criminal force, or show of
criminal force, the Central or any State Government or
Parliament or the Legislature of any State, or any public
servant in the exercise of the lawful power of such public
servant; or
(ii) to resist the execution of any law, or of any
legal process; or
(iii) to commit any mischief or criminal trespass, or
other offence; or
(iv) by means of criminal force, or show of criminal
force, to any person to take or obtain possession of any
property, or to deprive any person of the enjoyment of a
right of way, or of the use of water or other incorporeal
right of which he is in possession or enjoyment, or to
enforce any right or supposed right; or
(v) by means of criminal force, or show of criminal
force, to compel any person to do what he is not legally
bound to do, or to omit to do what he is legally entitled to
do.-
10. Only when the assembly fit into any of the above
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circumstances, it could be construed as unlawful. The accused had not
shown any criminal force to commit any mischief, crime or any offence
or by way of criminal force or tried to take possession of the property or
right to use of incorporeal right which is in possession of enjoyment of
others or rights.
11. 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 :-
"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
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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;
i) that there must be an order promulgated
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CRL.O.P.No.21823 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
and in public and private information will not be a
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CRL.O.P.No.21823 of 2022
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.
12. In the case on hand, the First Information Report has been
registered by the respondent police for the offences under Sections 143,
341 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
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CRL.O.P.No.21823 of 2022
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.
13. Accordingly, the proceedings in S.T.C.No.1159 of 2018 on
the file of the learned Judicial Magistrate Court No-II, Pollachi, is
quashed and the Criminal Original Petition is allowed.
12.09.2022
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
mpl
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CRL.O.P.No.21823 of 2022
G.K.ILANTHIRAIYAN, J.
mpl
To
1. The Judicial Magistrate Court No-II,
Pollachi.
2.The Inspector of Police,
Pollachi Bazzar Police Station,
Coimbatore District.
3. The Public Prosecutor,
High Court, Madras.
CRL.O.P.No.21823 of 2022
12.09.2022
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