Madras High Court
Muthamizhselvi vs The State Rep. By The Inspector Of Police on 28 February, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.5788 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.5788 of 2025
and Crl.M.P.No.3747 of 2025
Muthamizhselvi ... Petitioner
Vs.
The State Rep. by the Inspector of Police,
Jolarpet Police Station,
Thirupathur District. ... Respondent
PRAYER: Criminal Original Petition filed under Section 528 of BNSS praying
to call for the records pending on the file of the respondent police namely the
Inspector of Police, Jolarpet Police Station, Thirupathur District in crime
No.156 of 2018 and quash the criminal proceedings.
For Petitioner : Mr.E.Kannadasan
For Respondent :Mr.K.M.D.Muhilan
Government Advocate (Crl. Side)
ORDER
This Criminal Original Petition has been filed to quash the FIR in crime
No.156 of 2018 on the file of the respondent, registered for the offences under
Sections 143 and 188 of IPC.
2. The case of the prosecution is that on 23.06.2018 at about 13.30
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hrs., the petitioner, who was the District Secretary of a political party, along
with 14 male persons and 2 female persons gathered at Jolarpet Junction
Bus-stop and conducted road roko condemning the arrest of her party people
who proceeded with black flag to Governor Bhavan. On the basis of the above
said allegations, the respondent police registered the complaint against the
petitioner and others for the offences under Sections 143 and 188 of IPC in
Crime No.156 of 2018.
3. The learned counsel appearing for the petitioner submitted that the
petitioner is an innocent person and she 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 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
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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 and
188 of IPC as against the petitioner and others. Therefore, he sought for
quashing the proceeding.
4. Per contra, the learned Government Advocate (Crl.Side) submitted
that the petitioner along with others indulged in road roko at Jolarpet Junction
bus-stop, 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 petitioner is
an habitual offender 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 petitioner and the learned
Government Advocate (Crl.side) for the respondent and perused the materials
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available on record.
6. On perusal of the charge, it is seen that the petitioner along with
other accused persons indulged in road roko. Therefore, the 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
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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 353 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;...”
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
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other than that no Court has power to take cognizance.
8. The learned counsel for the petitioner relied upon a judgment 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
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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
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(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
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
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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 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
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case against the accused;
(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 Assembly:
Section 141 defines Unlawful Assembly-
An assembly of five or more persons is designated an
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“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 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. The accused had not shown any criminal force
to commit any mischief, crime or any offence or by way of criminal force or
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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 and 188
of IPC. He is 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
Section 143 and 188 of IPC. Therefore, the FIR cannot be sustained and is
liable to be quashed.
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13. Accordingly, the FIR in Crime No.156 of 2018 on the file of the
respondent, is hereby quashed and this Criminal Original Petition stands
allowed. Consequently, connected miscellaneous petition is closed.
28.02.2025
Internet : Yes / No (4/5)
Index : Yes / No
Speaking / Non Speaking order
lok
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G.K.ILANTHIRAIYAN, J.
lok
To
1.Inspector of Police,
Jolarpet Police Station,
Thirupathur District.
2.The Public Prosecutor,
High Court, Madras.
28.02.2025
(4/5)
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