Madras High Court
Solairaja @ Raja vs State Of Tamil Nadu on 2 January, 2025
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.O.P.(MD)No.22747 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.01.2025
CORAM
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.(MD)No.22747 of 2024
and
Crl.M.P.(MD)Nos.14239 and 14242 of 2024
1.Solairaja @ Raja
2.Siva
3.Kattari Velmurugan @ Velmurugan
4.K.Soundrapandian @ Soundrapandi
5.P.Madhan @ Madhanamohan ... Petitioners
Vs.
1.State of Tamil Nadu,
Rep. by through the Inspector of Police,
Tirumangalam Town Police Station,
Madurai District.
(Crime No.249 of 2016)
2.S.Annaraj,
Inspector of Police,
Tirumangalam Town Police Station,
Madurai District. ... Respondents
PRAYER : Criminal Original Petition filed under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023, to call for the records
pertaining to S.T.C.No.314 of 2024, on the file of the Judicial Magistrate
Court, Tirumangalam, in Crime No.249 of 2016, dated 08.05.2016, for
1/12
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Crl.O.P.(MD)No.22747 of 2024
the offences under Sections 143 and 188 of the I.P.C. and quash the same
as illegal as against the petitioners.
For Petitioners : Mr.KR.Bharathi Kannan
For R1 : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
ORDER
The Criminal Original Petition has been filed invoking Section
528 Bharatiya Nagarik Suraksha Sanhita, 2023, seeking orders to quash
the proceedings in S.T.C.No.314 of 2024, on the file of the Judicial
Magistrate Court, Tirumangalam.
2. The case of the prosecution is that on 08.05.2016, the de-facto
complainant, while conducting a patrol during election time along with
his police officials, observed the first petitioner, Solairaja (the Deputy
Chairman of the Tamil Nadu Olympic Association), and other
petitioners, along with around 500 individuals (who can be identified
upon seeing), conducting an election campaign on the Virudhunagar to
Madurai Main Road without prior permission. When the de-facto
complainant, along with other police personnel, attempted to intercept
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Crl.O.P.(MD)No.22747 of 2024
the procession, the petitioners continued their election campaign at the
same location. Hence, the de-facto complainant has lodged a complaint.
Based on the complaint, a case in Crime No.249 of 2016 was registered
for the offences under Sections 143 and 188 of the I.P.C. and on
completion of investigation, filed the final report, which was taken
cognizance of in S.T.C.No.314 of 2024, by the learned Judicial
Magistrate, Tirumangalam.
3. The learned counsel for the petitioners submitted that Sections
143 and 188 of the Indian Penal Code (I.P.C.) cannot be applied to the
petitioners. The petitioners and the other persons involved in the case
have not violated any law, and there are no specific allegations against
them indicating that they formed an unlawful assembly or used criminal
force with a common object to overawe the Central or State Government,
resist the execution of any law or legal process, or committed any
mischief or criminal trespass. In the absence of such specific allegations,
it is clear that the assembly in question cannot be considered an unlawful
assembly, and the members of that assembly cannot be prosecuted under
Section 143 of the I.P.C.
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Crl.O.P.(MD)No.22747 of 2024
4. The learned counsel further submitted that the charge under
Section 188 of the I.P.C. against the petitioners should be set aside. The
respondent police do not have the authority to register a case for an
offence under Section 188 of I.P.C., as it is only the concerned public
servant or an authorized officer who can file a written complaint before
the Judicial Magistrate. In this case, no such written complaint was filed
by any public servant, nor was there any violation of a promulgated
order. Therefore, the charge under Section 188 of the I.P.C. in S.T.C.No.
314 of 2024, before the learned Judicial Magistrate, Tirumangalam,
should be quashed.
5. The learned counsel for the petitioners further submitted that the
petitioners have not violated any traffic regulations, as alleged in the
impugned charge sheet. There are no specific allegations made against
the petitioners. Further, the respondent police are infringing upon the
petitioners' fundamental rights guaranteed under Article 19(1)(a) of the
Constitution of India. The petitioners, along with others, have not
conducted any demonstration as alleged by the prosecution, and no
untoward incidents occurred during the event. Hence, the final report
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Crl.O.P.(MD)No.22747 of 2024
filed against the petitioners in S.T.C.No.314 of 2024 before the Judicial
Magistrate Court, Tirumangalam, should be set aside.
6. The learned Additional Public Prosecutor for the State submits
that there are specific allegations as against the petitioners to proceed
with the case. Further, he would submit that Section 188 of I.P.C. 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 I.P.C., it does not mean
that the Police cannot register F.I.R., investigate the case and file the
final report. Hence, he vehemently opposed the quash petition and
prayed for dismissal of the petition.
7. This Court considered the submissions made on either side and
perused the materials available on record carefully.
8. Admittedly, the offences leveled against the petitioners are
under Sections 143 and 188 of the I.P.C. Apart from the official witness,
no other person has testified regarding the occurrence. Furthermore, it is
evident from the final report that the alleged offences are of a simple and
trivial nature.
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Crl.O.P.(MD)No.22747 of 2024
9. At this juncture, it is relevant to refer here Section 188 I.P.C.,
which 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 tends 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.''
10. The learned counsel for the petitioners 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 :-
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Crl.O.P.(MD)No.22747 of 2024
"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
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
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Crl.O.P.(MD)No.22747 of 2024
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 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
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Crl.O.P.(MD)No.22747 of 2024
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.''
11. In the case on hand, the First Information Report has been
registered by the respondent Police for the offences under Sections 143
and 188 I.P.C. He is not a competent person to register F.I.R. for the
offence under Section 188 of I.P.C. As such, the First Information Report
or final report is liable to be quashed for the offence under Section 188
of I.P.C. Further, the complaint does not even state as to how the
petitioners and others formed an unlawful assembly and does not satisfy
the requirements of Section 143 of I.P.C. Therefore, the F.I.R. itself
cannot be sustained and it is liable to be quashed. Admittedly in these
cases, the occurrence took place in a public place, in public view,
surprisingly no public or independent witness examined by the
prosecution, which causes serious doubt on the veracity of the complaint.
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Crl.O.P.(MD)No.22747 of 2024
12. Further, this Court in the case of Jeevanandham and others
vs. State Rep. by Inspector of Police and another reported in 2018 (2)
L.W. Crl. 606, had clearly held that the Police officials are not
empowered to register a case under Section 188 I.P.C. and the same is
barred under Section 195 Cr.P.C. There is no material to show that there
was any promulgation of prohibitory order, which was communicated to
the public and there was any disobedience by the petitioners. Further, in
consequence, the prosecution failed to show whether any trouble
occurred. The respondent Police failed to follow the guidelines issued by
this Court in Jeevanandham's case (cited supra). In several cases, this
Court quashed the proceedings against the accused on similar ground.
13. In the result, this Criminal Original Petition is allowed and the
proceedings in S.T.C.No.314 of 2024, pending on the file of the Judicial
Magistrate Court, Tirumangalam, is hereby quashed as against the
petitioners and others, who are similarly placed. Consequently,
connected Miscellaneous Petitions are closed.
02.01.2025
NCC : Yes / No
Index : Yes / No
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Crl.O.P.(MD)No.22747 of 2024
To
1.The Judicial Magistrate,
Tirumangalam.
2.The Inspector of Police,
Tirumangalam Town Police Station,
Madurai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD)No.22747 of 2024
M.NIRMAL KUMAR, J.
smn2
Order made in
Crl.O.P.(MD)No.22747 of 2024
Dated: 02.01.2025
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