Madras High Court
Suresh Kumar vs State By on 16 September, 2022
Crl.O.P.No.22311 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.09.2022
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.22311 of 2022
and Crl.M.P.Nos.14362 and 14364 of 2022
Suresh Kumar ... Petitioner
Vs.
1. STATE by
The Inspector of Police,
Erode South Police Station,
Erode District.
2. Manokaran ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
to call the entire records pertaining to the S.T.C.No.1485 of 2019 on the
file of the Judicial Magistrate No.3, Erode and quash the same.
For Petitioner : Mr.B.Kumarasamy
For R1 : Mr.S.Santhosh
Government Advocate (Crl.Side)
ORDER
This Criminal Original Petition has been filed calling for the entire
records pertaining to the S.T.C.No.1485 of 2019 on the file of the Judicial
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Crl.O.P.No.22311 of 2022
Magistrate No.3, Erode and quash the same.
2. The case of the prosecution is that on 26.03.2019, around
11.30 a.m., during the Election, the petitioner along with other accused
entered into the Collector office for filing of nomination form, without
following general Election rules. 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 188 and
353 of IPC in S.T.C.No.1485 of 2019, on the file the learned Judicial
Magistrate No.3, Erode.
3. The learned counsel appearing for the petitioner submitted
that the petitioner is a law graduate and without conducting any proper
investigation, the petitioner has been falsely implicated in this case. 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-
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Crl.O.P.No.22311 of 2022
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 Sections 188 and 353 of IPC as
against the petitioner and others. Therefore, he sought for quashing the
proceeding.
4. Per contra, the learned Government Advocate (Crl.Side)
submitted that the petitioner along with others entered into the Collector
office for nomination without following the general election rules and there
are specific allegations as against the petitioner to proceed with the trial.
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Crl.O.P.No.22311 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.B.Kumarasamy, learned counsel appearing for the
petitioner and Mr.S.Santhosh, learned Government Advocate (Crl.Side)
appearing for the first respondent.
6. On perusal of the charge, it is seen that during Election, the
petitioner along with other accused entered into the Collector office for
filing of nomination form, without following general Election rules.
Therefore, the respondent police levelled the charges under Sections 188
and 353 of I.P.C. as against the petitioner and others. Except the official
witnesses, no one has spoken about the occurrence and no one was
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Crl.O.P.No.22311 of 2022
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.
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Crl.O.P.No.22311 of 2022
7. The only question for consideration is that whether the
registration of case under Sections 188 and 353 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 shall 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
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Crl.O.P.No.22311 of 2022
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.
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
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Crl.O.P.No.22311 of 2022
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
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
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Crl.O.P.No.22311 of 2022
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
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
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Crl.O.P.No.22311 of 2022
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 188
and 353 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 petitioner and others is an unlawful protest and does not
satisfy the requirements of Section 353 of IPC. Therefore, the final report
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Crl.O.P.No.22311 of 2022
cannot be sustained and it is liable to be quashed.
10. Accordingly, the proceedings in S.T.C.No.1485 of 2019 on
the file of the Judicial Magistrate No.3, Erode, is hereby quashed and this
Criminal Original Petition stands allowed. Consequently, connected
miscellaneous petitions are closed.
16.09.2022
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
mn
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Crl.O.P.No.22311 of 2022
G.K.ILANTHIRAIYAN, J.
mn
To
1.The Judicial Magistrate No.3,
Erode.
2. The Inspector of Police,
Erode South Police Station,
Erode District.
3. The Public Prosecutor,
High Court, Madras.
Crl.O.P.No.22311 of 2022
and Crl.M.P.Nos.14362 and 14364 of 2022
16.09.2022
https://www.mhc.tn.gov.in/judis
