Kousar Mohiuddin And Another vs The State Of Telangana.,Rep.,Pp ...
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     THE HONOURABLE SRI JUSTICE K.LAKSHMAN

           CRIMINAL PETITION No.8186 OF 2017

ORDER:

This Criminal Petition under Section 482 of the Code of

Criminal Procedure, 1973 (for short 'Cr.P.C.') is filed to quash the

proceedings in C.C.No.12 of 2016 pending on the file of learned III

Metropolitan Magistrate, Erramanzil, Hyderabad.

2. Heard Sri A.Ravi Shankar, learned counsel for the petitioners

and Sri T.V.Ramana Rao, learned Addl. Public Prosecutor for the

respondents. Perused the record.

3. The petitioners herein are Accused Nos.2 and 3 in the present

C.C.No.12 of 2016. The offence alleged against them is punishable

under Section 188 of IPC.

4. The allegations leveled against the petitioners herein are that

on 25.04.2014 at about 15.00 hours, while 2nd respondent along with

his staff were performing duties in connection with AIMIM Party

rally in their police station limits, the organizer of rally by name

Mr.Mohammad Akber Hussain (A.2) and contesting candidate of

MIM Party Mr.Kousar Mohiuddin/A.3 have violated the officer's

order by conducting road show including bikes rally with number of

two and four wheelers. In the said rally, Mr.Akheruddin Owaisi, Ex-

MLA of Chandrayangutta constituency/ 2nd petitioner herein has

conducted three public meetings viz: near Morine Bakery, Ahmed

Colony, M.D.Lines, In front of Qutubshahi Masque and Langer

House X-road and thereby obstructed the free flow of traffic and

violated code of conduct of the Election Commission. Therefore,

petitioners committed offence under Section 188 of IPC.

5. Sri A.Ravi Shankar, learned counsel for the petitioners/A.2

and A.3 would submit that the cognizance taken in this case is

illegal in view of Section 468 (2) (b) of Cr.P.C. In the present case,

the complainant and investigating officer is one and the same. If any

violation of the order promulgated by the Sub Divisional Police

Officer within the meaning of 188 of IPC, the complaint ought to

have been filed by SDPO or any other officer to whom such SDPO

is administratively subordinate, otherwise, no court is competent to

take cognizance of such complaint. Therefore, he sought to quash

the proceedings in C.C.No.12 of 2016 against the petitioners herein.

6. In view of the above facts of the case, it is relevant to note

that the High Court of Andhra Pradesh in N.T. Rama Rao v. The

State of A.P., rep. by Public Prosecutor 1, it is held as follows:-

Even if the allegation that the petitioner conducted public meetings at three road junctions contrary to the permission accorded for conducting of a public meeting only at one specified place is true, such a direction under Section 30 of the Police Act, 1861 could have been given only by the Superintendent or the Assistant Superintendent of Police of the District but not by any of their subordinates. If such a permission is granted under Section 30 of the Police Act, 1861 and is violated, Section 195 (1) (a) of Code of Criminal Procedure mandates that the complaint in this regard has to be made by the public servant concerned or some other person to whom such a public servant is administratively subordinate to enable any Court to take cognizance of an offence under Section 188 of Code of Criminal Procedure. In the present case, the charge sheet was filed by the Sub Inspector of Police, who could not have been the authority to grant permission for the public meeting and therefore, the complaint/charge sheet is in violation of the mandatory provision of Section 195(1)(a) of Code of Criminal Procedure.

6) That apart, the offence alleged to have been committed under Section 283 of the Indian Penal Code by the petitioners and others is obviously in consequence to the alleged offence under Section 188 of Indian Penal Code and is not an independent of the same. Even otherwise, the conduct of public meeting at three road junctions or obstruction to the traffic could not have been considered as causing any danger or injury to any person. In so

Criminal Petition No.5323 of 2009, decided on 17.09.2009

far as the obstruction in any public way is concerned, which can also be covered by Section 283 of the Indian Penal Code, the charge sheet cites only one witness to speak about the traffic jam caused by the road show. But, when the conduct of the public meeting at least at one place has been permitted and if the gathering for that public meeting resulted in any inconvenience by way of obstructing the traffic, the same cannot be considered to be with necessary guilty mens rea to construe the existence of an offence punishable under Indian Penal Code. Under the circumstances, none of the offences alleged can be said to have any reasonable basis and in any view, the complaint/charge sheet being in violation of Section 195 (1) (a) of Code of Criminal Procedure, has to fail.

7) As the complaint has failed due to its unsustainability, the proceedings in their entirety have to fail, though the 1st accused alone approached this Court by way of this Criminal Petition."

7. In Thota Chandra Sekhar v. The State of Andhra

Pradesh, through S.H.O., P.S. Eluru Rural, West Godavari

District 2. relying on various judgments including N.T. Rama Rao

(supra) and the guidelines laid down by the Hon'ble Supreme Court

in State of Haryana v. Bhajan Lal 3, it was held as follows:-

".....Guideline No.6, which says that 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

Criminal Petition No.15248 of 2016, decided on 26.10.2016

(1992) Supp. 1 SCC 335

where there is a specific provision in the Code or the concerned Act, providing efficacious remedy to redress the grievance of the party, a learned Single Judge of High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh quashed the proceedings in the said C.C. by exercising power under Section 482 of Cr.P.C. It further held that the proceedings shall not be continued due to technical defect of obtaining prior permission under Section - 155 (2) of Cr.P.C. and taking cognizance on the complaint filed by V.R.O. and it is against the purport of Section - 195 (1) (a) of Cr.P.C."

8. In the present case, the allegation leveled against the

petitioners./A.2 and 3 are that they have conducted rally on road

including rally with number of two and four wheelers and thereby

obstructed the free flow of traffic and violated code of conduct of

the Election Commission, without obtaining prior permission from

the Election Commission of India. But, there is no mention in the

charge sheet as to which orders that were disobeyed by the

petitioners. In the present case, the complaint was filed by the

L.W.1, the Sub Inspector of Police and he himself is the

complainant. Therefore, the charge sheet is in violation of the

mandatory provision of Section - 195 (1) (a) of Cr.P.C.

9. Section - 188 of IPC deals with 'disobedience to order duly

promulgated by public servant. According to it, 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 or 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 etc. 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. As discussed supra, in the entire

charge sheet, there is no mention with regard to the orders that were

promulgated by the Public Authority and therefore, the question of

petitioners disobeying the same does not arise. Thus, the said

ingredients are lacking in the charge sheet filed by Investigating

Officer. In the present case L.W.1-the Sub Inspector of Police, is

complainant as well as the Investigating Officer.

10. Therefore, applying the principle laid down in the above

said judgments, in the light of the above said discussion, this

Criminal Petition is allowed. The proceedings in C.C.No.12 of

2016 pending on the file of learned III Metropolitan Magistrate,

Erramanzil, Hyderabad against the petitioners herein/A.2 and 3 are

hereby quashed.

Consequently, miscellaneous Petitions, if any, pending, shall also stand closed.

________________________ JUSTICE K. LAKSHMAN Date: 15.09.2023 vvr.