Madras High Court
Arun vs The State Of Tamil Nadu on 1 June, 2023
Crl.O.P.No.9889 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.06.2023
CORAM:
THE HON'BLE MR.JUSTICE G.CHANDRASEKHARAN
Crl.O.P.No.9889 of 2023
and Crl.M.P.Nos.6494 and 6495 of 2023
Arun ... Petitioner
Vs.
1. The State of Tamil Nadu,
represented by The Inspector of Police,
Erode South Police Station,
Erode.
(FIR No.223 of 2019,
STC No.1485 of 2019)
2. Manokaran ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
to call the records pertaining to the S.T.C.No.1485 of 2019 on the file of
the Judicial Magistrate No.III, Erode and quash the same.
For Petitioner : Mr.R.Harikrishnan
For R1 : Mr.Leonard Arul Joseph Selvam
Government Advocate (Crl.Side)
ORDER
This Criminal Original Petition has been filed calling for the
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.9889 of 2023
Magistrate No.III, Erode and to 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.III, 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
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Crl.O.P.No.9889 of 2023
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
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
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Crl.O.P.No.9889 of 2023
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. 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. Considered the rival submissions and perused the records.
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
examined to substantiate the charges against the petitioner. It is also seen
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Crl.O.P.No.9889 of 2023
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
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Crl.O.P.No.9889 of 2023
with both.
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
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Crl.O.P.No.9889 of 2023
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 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.9889 of 2023
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
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Crl.O.P.No.9889 of 2023
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
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
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Crl.O.P.No.9889 of 2023
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 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.9889 of 2023
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.III, Erode, is hereby quashed and
this Criminal Original Petition stands allowed. Consequently, connected
miscellaneous petitions are closed.
01.06.2023
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
mn
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Crl.O.P.No.9889 of 2023
G.CHANDRASEKHARAN, J.
mn
To
1. The Judicial Magistrate No.III, Erode.
2. The Inspector of Police,
Erode South Police Station,
Erode.
3. The Public Prosecutor,
High Court, Madras.
Crl.O.P.No.9889 of 2023
and Crl.M.P.Nos.6494 and 6495 of 2023
01.06.2023
https://www.mhc.tn.gov.in/judis
