Madras High Court
Poongundran vs The State Rep By on 24 February, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.5047 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.02.2025
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.5047 of 2025
and
Crl.M.P.Nos.3251 & 3254 of 2025
1.Poongundran,
Vice President,
Dravidar Kazhagam.
2.Anburaj,
General Secretary,
Dravidar Kazhagam.
3.Kumaresan,
Treasurer,
Dravidar Kazhagam,
All are having party office at
No.84/1(50), E.V.K. Sampath Road,
Vepery, Chennai – 600 007. .. Petitioners
Vs.
1.The State rep by.,
The Inspector of Police,
Egmore Police Station,
Chennai – 600 009.
(Crime No.187 of 2022)
2.M.Singaravelan,
The Sub Inspector of Police,
Egmore Police Station,
Chennai – 600 009. .. Respondents
1/13
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Crl.O.P.No.5047 of 2025
Prayer: Criminal Original Petition filed under Section 528 of B.N.S.S. /
482 of Cr.P.C., praying to call for the records relating to the proceedings
in C.C.No.14260 of 2022 on the file of the XIV Metropolitan Magistrate,
Egmore, Chennai and quash the same.
For Petitioners : Mr.D.Veerasekharan
For R1 : Mr.A.Gopinath
Government Advocate (Crl.Side)
ORDER
This Criminal Original Petition has been filed to quash the
proceeding in C.C.No.14260 of 2022, pending on the file of the XIV
Metropolitan Magistrate, Egmore, Chennai.
2.The case of the prosecution is that on 30.04.2022 at around 16.00
hours, the Petitioners, who are members of 'Dravidar Kazhagam',
unlawfully assembled near Egmore Railway Station without obtaining
prior permission from the police. They allegedly carried placard against
the imposition of Hindi under the leadership of Thiru.K.Veeramani, the
President of Dravidar Kazhagam. Despite repeated warnings issued by
the respondent police, the petitioners did not disperse. Consequently,
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they were arrested and the respondent police registered a suo motu FIR in
Crime No.187 of 2022 for offences punishable under Sections 143 and
188 of the IPC and Section 41 of TN City Police Act, 1888.
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 whom 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
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petitioners 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 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 near Egmore
Railway Station without obtaining prior permission and raised slogans
and bearing placard against the imposition of Hindi. 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 1st respondent and perused the
materials available on record.
6.On perusal of the charge, it is seen that the the petitioners
unlawfully assembled near Egmore Railway Station without obtaining
prior permission and raised slogans and bearing placard against the
imposition of Hindi. 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,
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 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;...”
8.Therefore, it is very clear that for taking cognizance of the
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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.
9.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 committed in his presence
or where such action is required, to prevent such person
from committing an offence under Section 188 of IPC.
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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;
(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
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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
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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10.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
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
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entitled to do.-
Explanation – An assembly which was not unlawful when it
assembled, may subsequently become an unlawful
assembly.”
11.Only when the assembly fit into any of the above
circumstances, it could be construed as unlawful. In this case, the
accused had neither shown any criminal force to commit any mischief,
crime or offence nor by way of criminal force, tried to take possession of
a tangible or intangible property or a corporeal or incorporeal right
which is in possession and enjoyment of others.
12.In the case on hand, the First Information Report has been
registered by the respondent police for the offences punishable under
Sections 143 and 188 of IPC. He is not a competent person to register
FIR for the offences punishable 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 was carried out by the petitioners and others is
an unlawful protest and it does not satisfy the requirements of Section
143 and 188 of IPC. Therefore, the final report cannot be sustained and is
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liable to be quashed.
13.Accordingly, the proceeding in C.C.No.14260 of 2022 pending
on the file of learned XIV Metropolitan Magistrate, Egmore, Chennai, is
hereby quashed and this Criminal Original Petition stands allowed.
Consequently, the connected miscellaneous petitions are closed.
24.02.2025
krk
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Internet : Yes / No
Neutral Citation : Yes / No
To
1.The XIV Metropolitan Magistrate,
Egmore, Chennai.
2.The State rep by.,
The Inspector of Police,
Egmore Police Station,
Chennai – 600 009.
3.The Sub Inspector of Police,
Egmore Police Station, Chennai – 600 009.
4.The Public Prosecutor,
Madras High Court, Chennai.
G.K.ILANTHIRAIYAN, J.
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krk
24.02.2025
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