Madras High Court
Thirumalai vs State Of Tamil Nadu on 14 March, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
CLOP(MD). No. 4500 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.03.2025
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
CLOP. (MD) No. 4500 of 2025
and
Crl. M.P.(MD) No. 3212 & 3213 of 2025
1.Thirumalai
2.Arujunan
3.Sathuragiri
4.Lingam
5.Ramasamy
6.Ramar
7.Pakshiraji @ Vanniyaraja
8.Balabarathi
9.Ibrahim Shah
10.Sonal Muthu ... Petitioners
Vs.
State of Tamil Nadu,
Rep., by the Inspector of Police,
Srivilliputhur Town Police Station,
Virudhunagar District. .. Respondent
(Crime No. 76 of 2020)
PRAYER: Criminal Original Petition is filed under Section 528 of BNSS, to
call for the records relating to the proceedings of the impugned charge sheet in
STC No.734 of 2020 on the file of the learned Judicial Magistrate No.II,
Srivilliputtur and quash the same as against the petitioners/Accused 1 to 10
herein.
Page 1 of 12
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/05/2025 01:26:54 pm )
CLOP(MD). No. 4500 of 2025
For Petitioners : Mr. K. Vamanan
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.734 of 2020 pending on the file of the learned Judicial Magistrate
No.II, Srivilliputtur.
2. The case of the prosecution is that on 04.02.2020 at around 17 hours,
the Petitioners, who are members of the political party, unlawfully assembled at
Kamarajar Statue at Ramakrishnapuram without obtaining prior permission
from the police. They allegedly raised slogans to demand to repeal the
Citizenship Amendment Act and obstructed vehicular traffic. Despite repeated
warnings issued by the respondent police, the Petitioners did not disperse.
Consequently, they were arrested and the respondent police registered a suo
motu FIR in Crime No.76 of 2020 for offences punishable under Sections 143,
188 and 151 of the IPC.
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
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/05/2025 01:26:54 pm )
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
whome 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 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, 188 and 151
of the IPC only as against the petitioners and others. Therefore, he sought for
quashing the proceeding.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/05/2025 01:26:54 pm )
4. Per contra, the learned Government Advocate (Crl.Side) submitted that
the petitioners unlawfully assembled in front of Kamarajar Statue at
Ramakrishnapuram without obtaining prior permission and raised slogans
demanding to repeal the Citizenship Amendment Act. 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.
5. Heard the learned counsel for the petitioners 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 petitioners unlawfully
assembled in front of Kamarajar Statue at Ramakrishnapuram without obtaining
prior permission and raised slogans demanding to repeal the Citizenship
Amendment Act. Therefore, the respondent police levelled the charges under
Sections 143, 188 & 151 of IPC as against the petitioners and others. Except
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/05/2025 01:26:54 pm )
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 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 :-
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/05/2025 01:26:54 pm )
“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
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 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
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/05/2025 01:26:54 pm )
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
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
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/05/2025 01:26:54 pm )
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 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
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/05/2025 01:26:54 pm )
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
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
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/05/2025 01:26:54 pm )
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
by the respondent police for the offences punishable under Sections 143, 188 &
151 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 liable to be quashed.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/05/2025 01:26:54 pm )
12. Accordingly, the proceeding in S.T.C. No. 734 of 2020 pending on
the file of learned Judicial Magistrate No.II, Srivilliputtur, is hereby quashed
and this Criminal Original Petition stands allowed. Consequently, connected
miscellaneous petition is closed.
14.03.2025
Index : Yes/No
Neutral citation : Yes/No
AT
To
1.The Judicial Magistrate No.II, Srivilliputtur.
2.The Inspector of Police,
Srivilliputhur Town Police Station,
Virudhunagar District.
3.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/05/2025 01:26:54 pm )
G.K.ILANTHIRAIYAN, J.
AT
CLOP.(MD) No. 4500 of 2025 and
Crl. M.P.(MD) No. 3212 & 3213 of 2025
14.03.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/05/2025 01:26:54 pm )
