Madras High Court
Sivasankaran vs State Rep on 14 March, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl. O.P. No. 7484 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.03.2025
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl. O.P. No. 7484 of 2025
and
Crl. M.P. Nos. 4767 & 4768 of 2025
Sivasankaran ... Petitioner
Vs.
State rep., by
The Inspector of Police,
Ariyalur Police Station,
Ariyalur. .. Respondent
(Crime No. 209 of 2018)
PRAYER: Criminal Original Petition is filed under Section 528 of BNSS, to
call for the records in STC. No. 409 of 2018 pending on the file of Judicial
Magistrate Court No.I, Ariyalur and quash the same as against the petitioner
and thus, render justice.
For Petitioner : Mr. N.R. Elango, Senior Counsel
for Mr. Aswin Prasanna A.S.
For Respondent : Mr. K.M.D. Muhilan,
Government Advocate (Crl.side)
ORDER
This Criminal Original Petition has been filed to quash the proceeding in
STC No. 409 of 2018 pending on the file of the Judicial Magistrate Court No. I,
Ariyalur.
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2. The case of the prosecution is that on 25.05.2018 at 1.30 p.m., the
Petitioner, who is the Minister for Transport Department along with other
people, unlawfully assembled in the entrance of the Ariyalur bus stand without
obtaining prior permission from the police. They allegedly raised slogans
against Central Government for not forming Kaveri Management Committee.
Despite repeated warnings issued by the respondent police, the Petitioner did
not disperse. Consequently, he was arrested and the respondent police
registered a suo motu FIR in Crime No. 209 of 2018 for offences punishable
under Sections 143 and 188 of the IPC.
3. The learned counsel 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 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
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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
petitioner or any other members had never been 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 and 188 of
the IPC only 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 unlawfully assembled in the entrance of the Ariyalur bus stand
without obtaining prior permission and raised slogans against Central
Government for not forming Kaveri Management committee. 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 in such crimes.
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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 the petitioner unlawfully
assembled in the entrance of the Ariyalur bus stand without obtaining prior
permission and raised slogans against the Central Government for not forming
Kaveri Management committee. Therefore, the respondent police levelled the
charges under Sections 143 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 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,
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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.”
7. The only question for consideration is that whether the registration of
case under Sections 143 and 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
(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 punishable
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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:
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
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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 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.
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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. 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
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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.”
10. 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.
11. In the case on hand, the First Information Report has been registered
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by the respondent police for the offence punishable under Sections 143 and 188
of IPC. He is not a competent person to register FIR for the offence punishable
under Section 188 of IPC. As such, the First Information Report or final report
is liable to be quashed for the offence under Section 188 of IPC. Further, the
complaint does not even state as to how the protest was carried out by the
petitioner and others is an unlawful protest and it does not satisfy the
requirements of Sections 143 and 188 of IPC. Therefore, the final report cannot
be sustained and is liable to be quashed.
12. Accordingly, the proceeding in S.T.C. No. 409 of 2018 pending on
the file of learned Judicial Magistrate Court No.I, Ariyalur, is hereby quashed
and this Criminal Original Petition stands allowed. Consequently, connected
miscellaneous petitions are closed.
14.03.2025
Index : Yes/No
Neutral citation : Yes/No
AT
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To
1.The Judicial Magistrate Court No.I, Ariyalur.
2.The Inspector of Police,
Ariyalur Police Station,
Ariyalur.
3.The Public Prosecutor,
High Court, Madras.
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G.K.ILANTHIRAIYAN, J.
AT
Crl. O.P. No. 7484 of 2025 and
Crl. M.P. Nos. 4767 & 4768 of 2025
14.03.2025
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