Madras High Court
Tamilmani vs State Rep By on 17 February, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No. 4099 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.02.2025
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No. 4099 of 2025
and
Crl.M.P.Nos.2610 & 2611 of 2025
Tamilmani .... Petitioner
Vs
1.State rep by
Inspector of Police,
Mahalingapuram Police Station,
Coimbatore District.
(Crime No.54 of 2018)
2. Jawaharkumar,
Sub-Inspector of Police,
Mahalingapuram Police Station,
Coimbatore District. .... Respondents
PRAYER: Criminal Original Petition is filed under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023, to call for the records in STC
No.920 of 2018 on the file of the Judicial Magistrate No.II, Pollachi and
quash the same so far as the petitioner is concerned.
For petitionerss : Mr.N.Ponraj
For R1 : Mr.A.Gopinath
Government Advocate (Crl.Side)
Page 1 of 16
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Crl.O.P.No. 4099 of 2025
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in STC No.920 of 2018 on the file of the Judicial Magistrate
No.II, Pollachi, thereby taken cognizance for the offences under Sections
143, 341 and 188 of IPC.
2. The case of the prosecution is that on 02.05.2018 at about
10 o'clock, near A1 Chips shop at Kamarajar Road in Pollachi, the
petitioner, along with others, unlawfully assembled for the purpose of
blockading the office of Superintendent of Police, Coimbatore and made
'Road roko', without getting prior permission from the concerned
authority. On the basis of the above said allegation, the respondent police
registered a case in Crime No.54 of 2018 against the petitioner and
others for the offences under Sections 143, 341 and 188 of IPC.
3. The learned counsel appearing for the petitioner submitted
that the petitioner is an innocent person and he has 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 once view or constitutionally protected
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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 petitioner or
others restrained anybody. However, the officials of the 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, 341 and 188 of IPC as against the
petitioner and others. Therefore, he sought for quashing the proceedings
in STC No.920 of 2018 on the file of the Judicial Magistrate No.II,
Pollachi.
4. Per contra, the learned Government Advocate (Crl.Side)
submitted that the petitioner, along with others, raised agitation against
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the Government and the officials of the Government and thereby
restrained the public and caused traffic and there are specific allegations
as against the petitioner. 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 offender by committing this kind of
crimes. He further submitted that the investigation has been completed
and the final report was filed and the same has been taken cognizance in
STC No.920 of 2018 on the file of the Judicial Magistrate No.II, Pollachi
Therefore, he vehemently opposed the quash petition and prayed for
dismissal of the same.
5. Heard the learned counsel for the petitioner 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 petitioner, along
with other accused persons, joined together and raised agitation against
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the Government for the purpose of blockading the office of
Superintendent of Police, Coimbatore, without getting prior permission
from the concerned authority. Therefore, the respondent police levelled
the charges under Sections 143, 341 and 188 of IPC as against the
petitioner and others. Except the official witnesses, no one has spoken
about the occurrence and no one was examined to substantiate the
charges against the petitioner. 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
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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 Section 188 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
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(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 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 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:
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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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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
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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.
9. It is to be noted that while exercising the power under Section
482, the Court should be slow, at the same time, if the Court finds that
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from the entire materials collected by the prosecution taken as a whole,
would not constitute any offence, in such situation, directing the parties
to undergo ordeal of trial will be a futile exercise and it will infringe the
right of the persons and in this regard, the Apex Court in State of
Haryana and others Vs. Bhajan Lal and Others reported in 1992 Supp
(1) Supreme Court Cases 335, has been held as follows :
“........
(a) where the allegations made in the First
Information Report or the complaint, even if they are
taken at their face value and accepted in their entirety do
not prima facie constitute any offence or make out a case
against the accused;
(b) where the allegations in the First Information
Report and other materials, if any, accompanying the
F.I.R. do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in
the FIR or -complaint and the evidence collected in
support of the same do not disclose the commission of
any offence and make out a case against the accused;
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(d) where the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non~cognizable offence, no investigation is permitted by
a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or
complaint are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for
proceeding against the accused;
(f) where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.”
10. It is also relevant to note the definition of Unlawful
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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, 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
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do.-
11. 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.
12. In the case on hand, the First Information Report has been
registered by the respondent police for the offences under Sections 143,
341 and 188 of IPC as against the petitioner. They are 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 petitioner and others is
an unlawful protest and does not satisfy the requirements of Sections 143
and 188 of IPC. Therefore, the proceedings in STC No.920 of 2018
cannot be sustained and is liable to be quashed.
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13. Accordingly, the proceedings in STC No.920 of 2018 on the
file of the Judicial Magistrate No.II, Pollachi, is hereby quashed and this
Criminal Original Petition stands allowed. Consequently, connected
miscellaneous petitions are closed.
17.02.2025
Index : Yes/No
Neutral citation : Yes/No
Speaking/non-speaking order
Lpp
To
1.The Judicial Magistrate No.II,
Pollachi.
2. The Inspector of Police,
Mahalingapuram Police Station,
Coimbatore District.
3. The Public Prosecutor,
High Court, Madras.
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G.K.ILANTHIRAIYAN, J.
Lpp
17.02.2025
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