Madras High Court
Bhuvanai Sowkath Aligan vs The State Represented By on 4 May, 2023
Crl.O.P.No.9777 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.05.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.K.IlANTHIRAIYAN
Crl.O.P.No.9777 of 2023
and
Crl.M.P.No.6389 of 2023
1.Bhuvanai Sowkath Aligan
2.Mohamed Ali
3.Sheik Nijamudeen
4.Umar @ Syed Umar
5.Mohamed Kamil
6.Bilal @Syed Bilal ...Petitioners
Vs.
1.The State represented by
The Inspector of Police,
Bhuvanagiri Police Station,
Cuddalore District.
(Crime No.117 of 2017)
2.Vetrivel ...Respondents
PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. Praying
to call for the records and quash the charge sheet in STC.No.218 of 2020
pending on the file of the District Munsif Cum Judicial Magistrate,
Portonovo, Cuddalore District as far as the petitioners are concerned and thus
render justice.
1/12
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Crl.O.P.No.9777 of 2023
For Petitioners : Mr.G.Pugazhenthi
For R-1 : Mr.S.Santhosh
Government Advocate (Criminal side)
ORDER
This Criminal Original Petition is filedto call for the records and quash
the charge sheet in STC.No.218 of 2020 pending on the file of the District
Munsif Cum Judicial Magistrate, Portonovo, Cuddalore District as far as the
petitioners are concerned and thus render justice.
2. The case of the prosecution is that on 22.04.2017, around 6.45
p.m., the petitioners and other accused staged protest demonstration meeting
under the title “Massacre by Saffron Terrorist” against the Hon'ble Prime
Minister, without getting prior permission from the concerned authority. On
the basis of the above said allegation, the respondent police registered the
complaint and filed a charge sheet against the petitioners and others for the
offences under Sections 143, 188 and 285 of IPC in STC.No.218 of 2020 on
the file the District Munsif Cum Judicial Magistrate, Portonovo, Cuddalore
District.
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Crl.O.P.No.9777 of 2023
3. The learned counsel appearing for the petitioners submitted that
the petitioners are social activist and have been raising voice for the public
cause and public welfare, whenever injustice and inaction of the government
machineries. In order to draw the attention of the Central and State
Governments, the petitioners along with several members had protested. 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-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 petitioners or others
restrained anybody. However, the officials of the respondent police had beaten
the petitioners and others. When there was lot of members involved in the
protest, the respondent police had registered this case, under Section 143, 188
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Crl.O.P.No.9777 of 2023
and 285 of IPC as against the petitioners and others. Therefore, he sought for
quashing the proceeding.
4. Per contra, the learned Government Advocate (Criminal side)
submitted that the petitioners along with others staged protest and there are
specific allegations as against the petitioners to proceed with the 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. Heard Mr.G.Pugazhenthi, learned counsel for the petitioners and
Mr.S.Santhosh, learned Government Advocate (Criminal side) appearing for
the 1st respondent.
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Crl.O.P.No.9777 of 2023
6. On perusal of the charge, it is seen that the petitioners and others
staged protest demonstration meeting under the titile “Massacre by Saffron
Terrorist” against the Hon'ble Prime Minister, without getting prior
permission from the concerned authority. Therefore, the respondent police
levelled the charges under Sections 143, 285 and 188 of I.P.C. as against the
petitioners and others. Except the official witnesses, no one has spoken about
the occurrence and no one was examined to substantiate the charges against
the petitioners. 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
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Crl.O.P.No.9777 of 2023
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.
7. The only question for consideration is that whether the
registration of case under Sections 143, 188 and 285 IPC, registered by the 1st
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 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
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Crl.O.P.No.9777 of 2023
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
and other than that no Court has power to take cognizance.
8. The learned counsel for the petitioners 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
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Crl.O.P.No.9777 of 2023
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;
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;
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Crl.O.P.No.9777 of 2023
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 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
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Crl.O.P.No.9777 of 2023
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 143, 188
and 285 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
petitioners and others is an unlawful protest and does not satisfy the
requirements of Sections 143 and 285 of IPC. Therefore, the final report
cannot be sustained and it is liable to be quashed.
10. Accordingly, the proceedings in charge sheet in STC.No.218 of
2020 pending on the file of the District Munsif Cum Judicial Magistrate,
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Crl.O.P.No.9777 of 2023
Portonovo, Cuddalore District as far as the petitioners are concerned is
quashed and the Criminal Original Petition is allowed. Consequently,
connected miscellaneous petition is closed.
04.05.2023
gd
Internet :Yes
Index :Yes/No
To:
1.The District Munsif Cum Judicial Magistrate,
Portonovo,
Cuddalore District
2.The Inspector of Police,
Bhuvanagiri Police Station,
Cuddalore District.
3.The Public Prosecutor,
High Court of Madras.
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Crl.O.P.No.9777 of 2023
G.K.IlANTHIRAIYAN, J.
gd
Crl.O.P.No.9777 of 2023
04.05.2023
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