Madras High Court

V.Ravi vs The State on 28 February, 2025

Author: G.K.Ilanthiraiyan

Bench: G.K.Ilanthiraiyan

                                                                                         Crl.O.P.No.3610 of 2025

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 28.02.2025

                                                              CORAM

                             THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                                   Crl.O.P.No.3610 of 2025


                     V.Ravi                                                                   ... Petitioner


                                                                  Vs

                     The State, Rep. by,
                     Inspector of Police,
                     Thiruninravur Police Station,
                     Thiruvallur District.
                     Crime No.389/2018.                                                    ... Respondent

                                  Criminal Original Petition is filed under Section 528 of the
                     Bharatiya Nagarik Suraksha Sanhita, 2023/482 of Cr.P.C., to call for the
                     records and quash the final report in S.T.C.No.321 of 2019 in Crime No.389
                     of 2018, pending on the file of the Judicial Magistrate-II, Tiruvallur.

                                  For Petitioner         : Mr.N.Kumanan

                                  For Respondent        : Mr.K.M.D.Muhilan,
                                                          Government Advocate (Crl.Side)




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                                                                                         Crl.O.P.No.3610 of 2025

                                                            ORDER

This Criminal Original Petition has been filed to quash the

proceedings in S.T.C.No.321 of 2019 on the file of the learned Judicial

Magistrate-II, Tiruvallur, thereby having been taken cognizance for the

offences under Sections 143 and 188 of I.P.C. as against the petitioner.

2. The case of the prosecution is that on 03.04.2018, when the de-

facto complainant, who is the Inspector of Police, T-11, Thiruninravur

Police Station, was patrolling near Gandhi Statue, the petitioner and others,

being members of the D.M.K. Political party and their alliance party

members, indulged in a road blockade and attempted to block the road

without obtaining prior permission from the concerned authority. On the

basis of the above-said allegation, the respondent police registered the

complaint and filed a charge sheet against the petitioner and others for the

offences under Sections 143 and 188 of IPC in S.T.C. No. 321 of 2019, on

the file of the learned Judicial Magistrate-II, Tiruvallur.

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3. The learned counsel appearing for the petitioner 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 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 Section 143

and 188 of IPC as against the petitioner and others. Therefore, he sought for

quashing the proceeding.

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

submitted that the petitioner along with others indulged in a road blockade

and attempted to block the road without obtaining prior permission from the

concerned authority and there are specific allegations as against the

petitioner to proceed with the trial. 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. Therefore, he

vehemently opposed the quash petition and prayed for dismissal of the

same.

5. Heard the learned counsel appearing on either side and perused

the materials placed before this Court.

6. On perusal of the charge, it is seen that the petitioner and others

indulged in a road blockade and attempted to block the road without

obtaining prior permission from the concerned authority. Therefore the

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respondent police levelled the charges under Sections 143 and 188 of I.P.C.

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 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.

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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 :-

“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 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

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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.

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

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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 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

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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.

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

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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

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.321 of 2019 on the

file of the learned Judicial Magistrate-II, Tiruvallur, is quashed and the