Madras High Court

Sivadoss vs The State Rep. By on 23 April, 2025

Author: G.K.Ilanthiraiyan

Bench: G.K.Ilanthiraiyan

                                                                                       Crl.O.P.No. 12250 of 2025

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 23.04.2025

                                                         CORAM:

                            THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                             Crl.O.P.No.12250 of 2025

                     1.Sivadoss
                     2.Manojraj
                     3.Selvaraj
                     4.Raja
                     5.Vijayarajan
                     6.Kabilan
                     7.Devadass
                     8.Saminathan
                     9.Rajmohan
                     10.Ajith
                     11.Madhavan
                     12.Ganesh
                     13.Vikraman
                     14.Vasanth
                     15.Bagavat
                     16.Asaithambi
                     17.Naresh
                     18.Theeran                                                              ... Petitioners

                                                              Vs.

                     The State rep. by
                     The Sub Inspector of Police,
                     Kodavasal Police Station,
                     Thiruvarur District, Tamil Nadu.
                     (Crime No.1087 of 2021)                                               ..Respondent


                     Page 1 of 14




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                                                                                             Crl.O.P.No. 12250 of 2025



                     PRAYER: Criminal Original Petition is filed under Section 528 of the
                     Bharatiya Nagarik Suraksha Sanhita, 2023, to call for the entire records
                     in connection with the case in Crime No.1087 of 2021 on the file of the
                     Kodavasal Police Station, Thiruvarur District and quash the same as
                     illegal.


                                        For Petitioners        : Mr.D.Mario Johnson


                                        For Respondent         : Mr.A.Gopinath,
                                                                 Government Advocate (crl.side)


                                                               ORDER

This Criminal Original Petition has been filed to quash the FIR in

Crime No.1087 of 2021 on the file of the respondent police, registered

for the offences punishable under Sections 143, 341, 188, 270 of IPC, 3

of Epidemic Diseases Act, 1897 and 51(b) of the Disaster Management

Act, 2005.

2. The case of the prosecution is that on 28.11.2021, during the

COVID-19 pandemic, a prohibitory order under Section 144 Cr.P.C., was

in force in the area. While being so, the petitioners, along with 15 others

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unlawfully assembled in violation of the order and without adhering to

social distancing norms, they allegedly blocked the road and staged a

protest against the arrest of an individual from the Neikuppam area.

Therefore, the respondent police registered a case against the petitioners

and others under Sections 143, 341, 188, 280 of the IPC, 3 of Epidemic

Diseases Act, 1897 and 51(b) of the Disaster Management Act, 2005 as a

suo moto complaint.

3. The learned counsel for the petitioners submitted that the

petitioners are innocent persons and they have 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 one's view are constitutionally protected rights

under Part III and their enjoyment can only be 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 assembly 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,

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unless a public servant has a written order from a competent authority.

Further he submitted that the petitioners or any other members had never

been 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 Sections 143, 341, 188, 280 of the IPC, 3 of

Epidemic Diseases Act, 1897 and 51(b) of the Disaster Management Act,

2005 only as against the petitioners and others. Therefore, he sought for

quashing the proceeding.

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

submitted that the despite the prohibitory order under Section 144 of

Cr.P.C., being in force, the petitioners along with 15 others, unlawfully

assembled, obstructed the public passage and staged a protest in violation

of social distancing norms. Further, he would submit that Section 188 of

IPC is a cognizable offence and therefore it is the duty of the police to

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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 petitioners are habitual offenders by committing this kind of

crimes. Therefore, he vehemently opposed the quash petition and prayed

for dismissal of the same.

5. Heard the learned counsel for the petitioners and the learned

Government Advocate (Crl.side) for the respondent and perused the

materials available on record.

6. On perusal of the charge, it is seen that the despite the

prohibitory order under Section 144 of Cr.P.C., being in force, the

petitioners and 15 others, unlawfully assembled, obstructed the public

passage and staged a protest in violation of social distancing norms.

Therefore, the respondent police levelled the charges under Sections 143,

341, 188, 280 of the IPC, 3 of Epidemic Diseases Act, 1897 and 51(b) of

the Disaster Management Act, 2005 as against the petitioners and others.

Except the official witnesses, no one has spoken about the occurrence

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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 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 188, 341 and 143 of IPC, registered

by the respondent is permissible under law or not? In this regard it is

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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 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

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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 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

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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.

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

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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. It is also relevant to note the definition of Unlawful

Assembly:

“Unlawful Assembly-

An assembly of five or more persons is designated an ”Unlawful assembly”, if the common object of the persons composing that assembly is -

(i) to overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or

(ii) to resist the execution of any law, or of any legal process; or

(iii) to commit any mischief or criminal trespass, or other offence; or

(iv) by means of criminal force, or show of criminal force,

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to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

(v) by means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.-”

10. Only when the assembly fit into any of the above

circumstances, it could be construed as unlawful. The accused had not

shown any criminal force to commit any mischief, crime or any offence

or by way of criminal force or tried to take possession of the property or

right to use of incorporeal right which is in possession of enjoyment of

others or rights.

11. In the case on hand, the First Information Report has been

registered by the respondent police for the offences under Sections 143,

341, 188, 270 of IPC, 3 of Epidemic Diseases Act, 1897 and 51(b) of the

Disaster Management Act, 2005. He is not a competent person to register

FIR for the offences under Section 188 of IPC. As such, the First

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