Madras High Court

Ramalingam vs State Represented By on 5 May, 2023

                                                                            Crl.O.P.No.10504 of 2023

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED :    05.05.2023

                                                       CORAM

                                  THE HONOURABLE Mr.JUSTICE G.K.ILANTHIRAIYAN

                                               Crl.O.P.No.10504 of 2023
                                                         and
                                          Crl.M.P.Nos.6742 & 6743 of 2023
                    1. Ramalingam
                    2. Ganagadurai
                    3. Uthirapathi
                    4. Barathidasan
                    5. Kathirvel
                    6. Sambath
                    7. Vijayakumar
                    8. Ramalingam
                    9. Sheik Dawood
                    10.Suresh
                    11.Jayaraman
                    12.Mohamed
                    13.N.Senthilkumar
                    14.Manavalan
                    15.Bharathi
                    16.Chandramohan
                    17.Mohan
                    18.Narayanasamy
                    19.Ananthan                                                   ... Petitioners
                                                            Vs.
                    1. State Represented by
                       The Inspector of Police,
                       Puthur Police Station,
                       Cuddalore District.



                    Page 1 of 13

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                                                                                  Crl.O.P.No.10504 of 2023

                    2. Radhakrishnan
                       Special Sub Inspector of Police,
                       Puthur Police Station,
                       Cuddalore District.                                          ... Respondents

                    Prayer:-
                              The Criminal Original Petition filed under Section 482 Cr.P.C., to call
                    for the record in S.T.C.No.141 of 2018 pending on the file of the Learned
                    District Munsif cum Judicial Magistrate Court, Kattumannarkoil, Cuddalore
                    and quash the same.
                                          For Petitioners    : Mr.D.Padmanabhan

                                          For R1             : Mr.N.S.Suganthan
                                                               Government Advocate (Crl.Side)

                                                       ORDER

This Criminal Original Petition has been filed to quash the proceedings

in S.T.C.No.141 of 2018 pending on the file of the Learned District Munsif

cum Judicial Magistrate Court, Kattumannarkoil, Cuddalore.

2. The case of the prosecution is that on 22.11.2017, around 10.30

am, the petitioners unlawfully assembled in front of the Nathamalai Fair Price

Shop under the leadership of A1, raised slogans against the then Government

for increasing the sugar price in the Fair Price Shop, without getting prior

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permission from the concerned authority and thereby prevented the free flow

of traffic and caused public nuisance. On the basis of the above said

allegation, the respondent police registered a case in Crime No.200 of 2017

and filed a charge sheet against the petitioners for the offences under

Sections 143 and 188 of IPC in S.T.C.No.141 of 2018 pending on the file of

the Learned District Munsif cum Judicial Magistrate Court, Kattumannarkoil,

Cuddalore.

3. The learned counsel appearing for the petitioners submitted that

the petitioners are active members of political party and have been raising

voice for the public cause and public welfare, whenever injustice and

inaction of the government machineries. With regard to raise in sugar price

in the Fair Price Shop, they gathered and raised slogans against the then

Government. 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

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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 petitioners had never

involved in any unlawful assembly and there is no evidence that the

petitioners restrained anybody. When there was lot of members involved in

the protest, the respondent police had registered this case, under Section 143

and 188 of IPC as against the petitioners. Therefore, he sought for quashing

the proceeding.

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

appearing for the respondents submitted that the petitioners gathered

unlawfully and raised slogans as against the Government and thereby

prevented the free flow of traffic and caused public nuisance. 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

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IPC, it does not mean that the police cannot register FIR and investigate the

case. He vehemently opposed the quash petition and prayed for dismissal of

the same.

5. Heard Mr.D.Padmanabhan, learned counsel for the petitioners

and Mr.N.S.Suganthan, learned Government Advocate (Criminal Side)

appearing for the respondents.

6. On perusal of the charges, it is seen that the petitioners gathered

and raised slogans as against the Government without getting prior

permission from the concerned authority. Therefore, the respondent police

levelled the charges under Sections 143 and 188 of I.P.C. as against the

petitioners. 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 of IPC reads as follows:

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“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.

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

case under Sections 143, 188 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 :-

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“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 whom he is administratively subordinate;...” Therefore, it is very clear that for taking cognizance of the offence 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 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

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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 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.

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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

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.

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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 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.

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9. 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 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 assembly gathered by the

petitioners is an unlawful assembly 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.

10. Accordingly, the proceedings in S.T.C.No.141 of 2018 pending

on the file of the Learned District Munsif cum Judicial Magistrate Court,