Madras High Court

Mr.K.Bharathi vs The State Rep By on 13 September, 2022

                                                                           Crl.O.P.No.21952 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 13.09.2022

                                                       CORAM:

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

                                              Crl.O.P.No.21952 of 2022

                     1.Mr.K.Bharathi
                     2.Mr.K.Suresh                                       ... Petitioners
                                                            Vs.

                     1.The state rep by
                       The Inspector of Police,
                       T-1, Ambattur Police Station,
                       Crime No.84 of 2022

                     2.Bhuvaneswari.M
                       Inspector of Police
                       T-1, Ambattur Police Station                      ... Respondents



                     PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
                     to call for the records against Crime No.84 of 2022 dated 31.01.2021 on
                     the file of the respondents police and quash the same.


                                          For Petitioners     : Mr.Ramesh Umapathy
                                          For Respondent 1 : Mr.S.Santhosh
                                                             Government Advocate (Crl.side)


                     Page 1 of 13

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                                                                               Crl.O.P.No.21952 of 2022




                                                          ORDER

This Criminal Original Petition has been filed to quash the FIR in

Crime No.84 of 2022 for the offences under sections 143 and 188 of IPC

on the file of the 1st respondent police.

2. The case of the prosecution is that on 31.01.2022, around

4.30 p.m, the petitioners along with others organized a rally from

Ambattur Corporation to Ambedkar Statue to garland the Ambedkar

Statue without getting prior permission from the concerned authority. On

the basis of the above said allegation, the respondent police registered

the complaint against the petitioners and others for the offences under

Sections 143 and 188 of IPC in Crime No.84 of 2022.

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

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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 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 and 188 of IPC as against the petitioners and

others. Therefore, he sought for quashing the proceedings.

4. Per contra, the learned Government Advocate (Crl.side) for

the first respondent submitted that the petitioners along with others

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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

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 petitioners are 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.Ramesh Umapathy, learned counsel for the

petitioners and Mr. S.Santhosh, learned Government Advocate(Crl.side)

for the first respondent.

6. On perusal of the FIR, it is seen that the petitioners and

others have organized a rally to garland the Ambedkar Statue 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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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 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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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 the public servant concerned or of some other

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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 :-

"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;

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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 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

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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

registered by the respondent police for the offences under Sections 143

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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 FIR cannot

be sustained and it is liable to be quashed.

10. Accordingly, the proceedings in Crime No.84 of 2022 on the

file of the first respondent police is quashed and the Criminal Original