Meppal Sakthi @ Sathiyanathan vs The Inspector Of Police
2023 Latest Caselaw 1069 Mad

                                                                            Crl.O.P.(MD) No.1364 of 2023


                         BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                             DATED: 27.01.2023

                                                  CORAM:

                    THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA

                                      Crl.O.P.(MD) No.1364 of 2023
                                  and Crl.MP(MD)Nos.1210, 1211 of 2023

                Meppal Sakthi @ Sathiyanathan
                                                                                     ... Petitioner

                                                      Vs

                1. The Inspector of Police,
                Sivagangai Town Police Station,
                Sivagangai.(Crime No.267 of 2016).

                2. Dharmar
                                                                                ... Respondents



                PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. praying

                this Court to call for the records relating to the S.T.C.No.423 of 2016 pending

                on the file of the learned Judicial Magistrate No.1,Sivagangai and quash the

                same as against the petitioner.

                                   For Petitioner : M/s.Karuppiah.G

                                   For R1             : Mr.R.Sivakumar
                                                        Government Advocate (Crl.Side)


                1/12

https://www.mhc.tn.gov.in/judis
                                                                               Crl.O.P.(MD) No.1364 of 2023




                                                      ORDER

This criminal original petition has been filed seeking to quash the

S.T.C.No.423 of 2016 pending on the file of the learned Judicial Magistrate

No.1, Sivagangai.

2. The case of the prosecution is that on 17.04.2016 at 11.30 a.m., the

petitioner along with other persons indulged in election campaign seeking

votes. At that time, the accused persons travelled in two vehicles and

transgressed the election rules by bursting crackers and caused breach of

peace. Thereby the petitioner is alleged to have committed offences

punishable under Sections 143, 188 and 285 IPC in Crime No.267 of 2016 on

the file of the the respondent police, which was taken on file as STC No.423

of 2016, on the file of the learned Judicial Magistrate No.I, Sivagangai.

3. Learned counsel appearing for the petitioner would submit that the

petitioner is innocent. He would further submit that 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

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.1364 of 2023

authority. Further he would submit 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. He would further submit that when

there was lot of members alleged to have involved in the occurrence, the

respondent police had registered this case, under Sections 143, 188 and 285

of IPC as against the petitioner and therefore, he sought for quashing the

proceeding.

4. Per contra, the learned Government Advocate (Crl.Side) submitted

that Section 188 of IPC is a cognizable offence and therefore, it is the duty of

the police to register a case. He would also submit that 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 the learned counsel appearing for the parties.

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.1364 of 2023

6. On a perusal of the charge as against the petitioner is concerned, the

respondent police had levelled the charges under Sections 143, 188 and 285

of IPC for having assembled unlawfully along with others indulged in

election campaign seeking votes and at that time, the accused persons

travelled in two vehicles and transgressed the election rules by bursting

crackers and caused breach of peace.

7. A perusal of the materials available on record makes it clear that

except the official witnesses, no one has spoken about the occurrence and no

one was examined to substantiate the charge against the petitioner. It is also

seen from the charge itself that the charges are very simple and trivial in

nature.

8. 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

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.1364 of 2023

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”

9. The only question for consideration is that whether the registration of

case under Sections 143, 188 and 285 of IPC by the respondent is permissible

in law or not?

10. In this regard it is relevant to extract Section 195(1)(a) of the

Criminal Procedure Code, 1973 :-

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.1364 of 2023

“195.Prosecution for contempt of lawful authority of public

servants, for offences against public justice and 5 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 public servant to whom he is administratively

subordinate;...”

11. 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.

12. The learned counsel for the petitioner, in support of his contentions,

relied upon a judgement 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

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.1364 of 2023

case of Jeevanandham and others Vs. State rep. by the Inspector of Police,

Karur District, wherein 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 6 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

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.1364 of 2023

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 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

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.1364 of 2023

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 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

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.1364 of 2023

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.

13. He also relied upon the similar facts of the case covered under the

judgment of this Court in the case of Raja Vs. State reported in (2019) 4

MLJ (Crl) 175.

14. In the case on hand, the First Information Report has been

registered by the respondent police for the offences under Sections 143, 188

and 285 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 143 of IPC. Therefore, the final report cannot be

sustained and it is liable to be quashed.

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.1364 of 2023

15. Accordingly, the proceedings in STC No. 423 of 2016 on the file of

the learned Judicial Magistrate No.I, Sivagangai is quashed insofar as the

petitioner alone and the Criminal Original Petition is allowed. Consequently,

connected Criminal Miscellaneous Petitions are closed.

27.01.2023

NCC:Yes/No Index:Yes/No Internet:Yes/No PNM

To

1.The Inspector of Police, Sivagangai Town Police Station, Sivagangai.(Crime No.267 of 2016).

2. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.1364 of 2023

A.D.JAGADISH CHANDIRA, J.

PNM

ORDER IN Crl.O.P.(MD) No.1364 of 2023 and Crl.MP(MD)Nos.1210, 1211 of 2023

27.01.2023

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