Madras High Court

Muruganandham vs State Rep By on 30 April, 2025

Author: G.K.Ilanthiraiyan

Bench: G.K.Ilanthiraiyan

                                                                                       Crl.O.P.No. 13681 of 2025

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 30.04.2025

                                                         CORAM:

                            THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                             Crl.O.P.No.13681 of 2025

                     1.Muruganandham
                     2.Balu
                     3.Yuvaraj
                     4.Sarath Kumar
                     5.Revathi
                     6.Amsa Rani                                                       ... Petitioners
                                                              Vs.

                     State rep by
                     The Inspector of Police,
                     Sethiyathope Police Station,
                     Cuddalore District.
                     (Suo motu registered Crime No.111/2016).                              ..Respondent


                     PRAYER: Criminal Original Petition is filed under Section 528 of the

                     Bharatiya Nagarik Suraksha Sanhita, 2023, to call for the records of the

                     impugned charge sheet in STC No.263 of 2022 (earlier STC No.76 of

                     2017) pending on the file of the learned Judicial Magistrate Court-I,

                     Chidambaram and quash the same.




                     Page 1 of 14




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                                                                                            Crl.O.P.No. 13681 of 2025

                                       For Petitioners        : Mr.A.Suresh Sakthi Murugan


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


                                                              ORDER

This Criminal Original Petition has been filed to quash the

proceeding in STC No.263 of 2022 (earlier STC No.76 of 2017) pending

on the file of the learned Judicial Magistrate Court-I, Chidambaram.

2. The case of the prosecution is that on 02.05.2016 at around

7:30 p.m., the Petitioners, who are members of an organization called

“Makkal Adhikaram”, unlawfully assembled at Kaattunayakan Street

without obtaining prior permission from the police. They allegedly raised

slogans demanding the closure of a TASMAC liquor outlet and

obstructed vehicular traffic on Kaattunayakan Street, from Aanaivari to

Thirunelveli Road. Despite repeated warnings issued by the respondent

police, the Petitioners did not disperse. Consequently, they were arrested

and the respondent police registered a suo motu FIR in Crime No.111 of

2022 for offences punishable under Sections 143 and 188 of the IPC.

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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

fundamental rights under Part III of the Indian Constitution and their

enjoyment can only be in reasonable manner and can be curtailed

through a fair and non-arbitrary procedure as provided under Article 19

of the 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,

except on the complaint in writing of the public servant concerned or

other public servant to whome he is administratively subordinate. 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

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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 143 and 188 of the IPC 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 petitioners unlawfully assembled on Kaatunayakan

Street without obtaining prior permission and raised slogans demanding

the closure of a TASMAC liquor outlet. 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 petitioners are habitual offenders in such crimes.

Therefore, he vehemently opposed the quash petition and prayed for

dismissal of the same.

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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 the petitioners

unlawfully assembled on Kaatunayakan Street without obtaining prior

permission and raised slogans demanding the closure of a TASMAC

liquor outlet. Therefore, the respondent police levelled the charges under

Sections 143 and 188 of IPC 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 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,

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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 and 143 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;...”

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Therefore, it is very clear that for taking cognizance of the offences

punishable 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

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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 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;

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(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 Cr.P.C.

h) The Director General of Police, Chennai and Inspector General of the various Zones are directed to

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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:

“According to Section 141 of the IPC, Unlawful Assembly means-

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

First - 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 Second - To resist the execution of any law, or of any legal process; or Third - To commit any mischief or criminal trespass, or other offence; or Fourth - By means of criminal force, or show of criminal force, to any person to take or obtain possession of

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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 Fifth - 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.-