Madras High Court
Jeganathan vs The State By on 5 January, 2023
Crl.O.P.(MD) No.5903 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 05.01.2023
CORAM:
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
Crl.O.P.(MD) No.5903 of 2020
1.Jeganathan
2.Rajamani
3.Subramani
4.Nallasamy
5.Nallasamy
6.Appukutti
7.Palanisamy
8.Pathumalai
9.Kittusamy
10.Arumugam
11.Nathachimuthu
12.Ramasamy
13.Palanisamy
14.Ponnusamy
15.Rani
16.Dhanalakshmi
...Petitioners/A1 to A16
Vs.
The State by
The Inspector of Police,
Thennilai Police Station,
Karur District,
(Crime No.147/2017) ... Respondent
1/11
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Crl.O.P.(MD) No.5903 of 2020
PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C.
praying to call for the records pertaining to the charge sheet in S.T.C.No.
41 of 2019 on the file of the learned Judicial Magistrate, Aravakurichi,
Karur District and quash the same.
For Petitioners : Mr.M.Palani Raja
For Respondent : Mr.R.Meenakshi Sundaram
Addl. Public Prosecutor
ORDER
This quash petition challenges the charge sheet in STC No.41 of
2019 on the file of the Judicial Magistrate, Aravakurichi, Karur District
filed for the offences under Sections 143 and 188 IPC.
2. It is the case of the prosecution that the accused in order to
protest against the price rise of 'Sugar', assembled and formed an
unlawful assembly and caused breach of peace, in violation of the orders
passed by the Superintendent of Police, Karur.
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Crl.O.P.(MD) No.5903 of 2020
3.The learned counsel for the petitioners submitted that the
respondent police have no jurisdiction to file a final report under Section
188 of IPC. Section 195 Cr.P.C states that no court shall take cognizance
of any offence punishable under Sections 172 to 188 IPC except on the
complaint in writing of the public servant. In the instant case, there is no
complaint by the public servant. The learned counsel further submitted
that there are no allegations to constitute the offence of unlawful
assembly. None of the ingredients of Section 141 IPC is made out. The
learned counsel relied upon an order of this Court made in
Crl.O.P(MD)No.19749 of 2018 dated 01.11.2018, wherein, this Court
had quashed a similar final report filed under Sections 143 and 188 IPC.
4. The learned Additional Public Prosecutor submitted that the
ingredients of the offence of unlawful assembly is made out as the
petitioners had violated the order passed by the Superintendent of Police,
Karur and formed an unlawful assembly. The learned Additional Public
Prosecutor further submitted that the impugned final report does not
suffer from any infirmity.
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Crl.O.P.(MD) No.5903 of 2020
5. Heard the learned counsel for the petitioners and the learned
Additional Public Prosecutor.
6. A reading of the final report would show that the petitioners had
joined together to protest against the price rise of “Sugar” announced by
the State Government. Though it is stated in the final report that the
petitioners had violated an order passed by the Superintendent of Police,
Karur, the Superintendent of Police, Karur has not filed any complaint as
mandated under Section 195 Cr.P.C for the alleged offence under Section
188 IPC. The statute mandates that no court shall take cognizance for the
offence under Sections 172 to 188 IPC except on the complaint given by
the public servant. Under Section 188 IPC, the public servant concerned
is the public servant who promulgated the order which has been violated.
This Court and the Hon'ble Supreme Court have repeatedly held that the
cognizance based on the investigation otherwise than as the complaint of
the public servant is illegal and unsustainable in law. Hence, cognizance
taken for the offence under Section 188 IPC in the instant case is bad in
law.
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Crl.O.P.(MD) No.5903 of 2020
7. As regards the offence under Section 143 IPC, we find that a
peaceful protest made by the petitioners by joining together is sought to
be projected as unlawful assembly. None of the ingredients necessary to
designate an assembly as an unlawful assembly as provided in Section
141 IPC has been alleged by the respondent. Hence, Section 143 IPC is
also not made out.
8. This Court in similar circumstances, had quashed the final report
and held as follows:-
“8. The only question for consideration is that
whether the registration of case under Sections 143, 188
IPC, on the complaint lodged 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 Court shall take
cognizance;
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Crl.O.P.(MD) No.5903 of 2020
(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;...”
9. In view of the above, 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.
10. The learned counsel for the petitioners relied
upon the judgement in Mahaboob Basha Vs. Sambanda
Reddiar and others reported in 1994(1) Crimes, Page
477. In the above judgment cited by the learned counsel
for the petitioners in a batch of quash petitions, this
Court has 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 Sections 172 to
188 of IPC.
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Crl.O.P.(MD) No.5903 of 2020
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 by the
public servant;
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Crl.O.P.(MD) No.5903 of 2020
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 promulgation. The order must be
notified or published by beat of drum or in a
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Crl.O.P.(MD) No.5903 of 2020
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 Sections 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 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.
11. 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 an FIR for the offences
under Section 188 of IPC. As such, the First
Information Report or final report is liable to be
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Crl.O.P.(MD) No.5903 of 2020
quashed for the offences under Section 188 of IPC.
Further, the complaint does not even state as to how the
dharna formed by the person is an unlawful dharna 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.”
9. Therefore, for the aforesaid reasons, the impugned charge sheet
in STC No.41 of 2018 on the file of the Judicial Magistrate,
Aravakurichi, Karur District is quashed and the Criminal Original
Petition is allowed.
05.01.2023
skn
NCC:Yes/No
Internet:Yes/No
Index:Yes/No
To
1.The Judicial Magistrate, Aravakurichi,
Karur District.
2.The Inspector of Police,
Thennilai Police Station,
Karur District,
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.5903 of 2020
SUNDER MOHAN, J.
skn
Crl.O.P.(MD) No.5903 of 2020
05.01.2023
https://www.mhc.tn.gov.in/judis
