Madras High Court
A.M.Mathiyazhagan vs State Rep By Its on 2 June, 2023
Crl.O.P..No.12333 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.06.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.CHANDRASEKHARAN
Crl.O.P.No.12333 of 2023
and Crl.M.P.No.7567 of 2023
1.A.M.Mathiyazhagan
2.Kumar
3.Thangamani
4.Murugan ... Petitioners
Vs.
1.State Rep by its
Inspector of Police,
Sethiyathope Police Station,
Cuddalore District
(Crime No.815 of 2020)
2.Manickaraja
Sub-Inspector of Police ,
Sethiyathope Police Station,
Cuddalore District. ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. praying
to call for the records in Crime No.815 of 2020 pending Inspector of Police,
Sethiyathope Police Station, Cuddalore District, and quash the same.
For Petitioners : Mr.P.Dhileepan
For Respondents : Mr.Leonard Arul Joseph Selvam
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Crl.O.P..No.12333 of 2023
Government Advocate (Crl. Side)
(For R1)
ORDER
This Criminal Original Petition has been filed to call for the records in
Crime No.815 of 2020 pending on the file of the Inspector of Police,
Sethiyathope Police Station, Cuddalore District, and quash the same.
2.The learned counsel for the petitioners submitted that, petitioners are
accused in First Information Report in Crime No.815 of 2020 2020 being
prosecuted for the offences under Sections 188 & 269 I.P.C. It is the case of
the prosecution that petitioners are members of DMK Political party. On
21.07.2020, near Agaraalambadi bus stop, petitioners without obtaining prior
permission, protested against collection of increased electricity tariff by the
State Government. This protest was arranged and conducted during the spread
of Covid-19 and Section 144 promulgation was in force, thereby, causing
spread of Covid-19 among the general public and prevented free flow of
traffic.
2a.It is the further submission of the learned counsel for the petitioners
that FIR allegations do not make out the offence under Section 269 of IPC
against the petitioners that, they unlawfully or negligently does any act which
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Crl.O.P..No.12333 of 2023
is, and which they knows or has reason to believe to be, likely to spread the
infection of any disease dangerous to life. Therefore, this petition is filed for
quashing.
3.He further submitted that this Court in Crl.O.P.No.17903 of 2021 and
Crl.O.P.No.11291 of 2022 quashed the cases registered under Section 143 and
341 of IPC and 143, 188 and 341 of IPC respectively, on the ground that, the
petitioners therein were engaged in protest, which is their fundamental right.
No public lodged complaint and no public got affected, due to the protest
conducted by the petitioners. Petitioners had only raised slogans against the
Government and the same would not amount to commission of offence and it
is a fundamental right under the constitution of India.
4. The learned counsel for the petitioners relied upon a Judgment 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
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Crl.O.P..No.12333 of 2023
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 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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Crl.O.P..No.12333 of 2023
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 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.
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Crl.O.P..No.12333 of 2023
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.
5.The learned Government Advocate (Criminal side) opposed this
petition on the ground that petitioners were requested to stop the protest, but
they continued their protest on behalf of their political party and raised
slogans against the Government, thereby causing spread of Covid-19.
Therefore, First Information Report in Crime No.815 of 2020 was registered.
Thus, he prayed for dismissal of this petition.
6.Considered the rival submissions and perused the records. It is
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Crl.O.P..No.12333 of 2023
pertinent to refer to the offences for which FIR was registered in this case.
7. Section 188 of IPC 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.
In the Judgment reported in [2018 2 LW (Crl) 606] “Jeevanandham
and others Vs The Inspector of Police Velayuthampalayam Police Station,
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Crl.O.P..No.12333 of 2023
Karur District” dated 20.09.2018, it has been held that the police has no right
to file a case under Section 188 IPC and to investigate the same without
informing about the commission of offence under Section 188 IPC to the
public servants concerned/authorities to enable such public servants to give
complaint in writing before the learned Jurisdictional Magistrate who shall
take cognizance of the complaint, on being prima facie satisfied with the
requirements of Section 188 IPC. No such procedure has been followed in
this case. In such circumstances, the respondent has no right to register the
case and to investigate the matter.
8.Section 269 of IPC reads as follows:
“Whoever unlawfully or negligently does any act
which is, and which he knows or has reason to believe to
be, likely to spread the infection of any disease dangerous
to life, shall be punished with imprisonment of either
description for a term which may extend to six months, or
with fine, or with both.”
Section 269 of Cr.P.C states that a person can be prosecuted if he
unlawfully or negligently does any act which is, and which he knows or has
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Crl.O.P..No.12333 of 2023
reason to believe to be, likely to spread the infection of any disease dangerous
to life. In the case before hand, except the allegation that the petitioners
violating the prohibition order, there is no other material produced to show
that the petitioners were affected by Covid-19, when they came out of their
house in a public place and that resulted in spread of Covid -19 or any other
dangerous disease.
9. In the absence of any material in support of the allegations that
petitioners were responsible for spreading the infectious disease which is
dangerous to life, this Court is of the considered view that, petitioners cannot
be prosecuted under Section 269 of IPC.
10.As per Section 468 of Cr.P.C., the final report ought to have been
filed within a period of one year from the date of commission of offence when
an offence is punishable with imprisonment which may extend to one year.
The F.I.R. was registered in this case on 21.07.2020. Till date, final report is
not filed. Therefore, even if the final report is filed now, in view of the bar
under Section 468 of Cr.P.C., the Court cannot take cognizance of the
offences. In view of the above, continuance of the criminal proceeding in
Crime No.815 of 2020 against the petitioners is nothing but an abuse of
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Crl.O.P..No.12333 of 2023
process of law.
11. In conclusion, for the reasons stated above, this Court finds that
petitioners cannot be prosecuted for the offences under Sections 188 and
269 of I.P.C.
12.In this view of the matter, this Criminal Original Petition is allowed
and F.I.R in Crime No.815 of 2020 pending on the file of the Inspector of
Police, Sethiyathope Police Station, Cuddalore District, against the petitioners
is quashed. Consequently, connected miscellaneous petition is closed.
02.06.2023
Internet:Yes
Index:Yes/No
ep
https://www.mhc.tn.gov.in/judis
Crl.O.P..No.12333 of 2023
To:
1.Inspector of Police,
Sethiyathope Police Station,
Cuddalore District
(Crime No.815 of 2020)
2.Manickaraja
Sub-Inspector of Police ,
Sethiyathope Police Station,
Cuddalore District.
3.The Public Prosecutor,
High Court of Madras.
https://www.mhc.tn.gov.in/judis
Crl.O.P..No.12333 of 2023
G.CHANDRASEKHARAN, J.
ep
https://www.mhc.tn.gov.in/judis
Crl.O.P..No.12333 of 2023
Crl.O.P.No.12333 of 2023
and Crl.M.P.No.7567 of 2023
02.06.2023
https://www.mhc.tn.gov.in/judis
