Karnataka High Court
Sri Sathish Reddy M vs State By Bommanahalli on 11 July, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2025:KHC:25485
CRL.P No. 508 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
CRIMINAL PETITION NO. 508 OF 2025
BETWEEN:
SRI. SATHISH REDDY M,
S/O LATE MUNI REDDY,
AGED ABOUT 52 YEARS,
R/AT NO. 123, BEGUR MAIN ROAD,
HONGASANDRA, NEAR ANJENAYA TEMPLE,
BOMMANAHALLI, BANGALORE - 560 068.
MEMBER OF LEGISLATIVE ASSEMBLY
BOMMANAHALLI CONSTITUENCY,
BANGALORE - 560 068.
...PETITIONER
(BY SRI. GAURAV H.S, ADVOCATE)
Digitally signed AND:
by
SHARADAVANI
B 1. STATE BY BOMMANAHALLI
Location: High POLICE STATION, BANGALORE,
Court of
Karnataka REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA - 560 001.
2. POLICE INSPECTOR,
BOMMANAHALLI POLICE STATION,
ROOPANA AGRAHARA, BOMMANAHALLI,
BANGALORE - 560 068.
...RESPONDENTS
(BY SRI. B.N. JAGADEESHA, ADDL. SPP FOR R1 AND R2)
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NC: 2025:KHC:25485
CRL.P No. 508 of 2025
HC-KAR
THIS CRL.P IS FILED U/S 482 OF CR.PC (FILED U/S 528
BNSS) PRAYING TO QUASH THE REGISTRATION OF FIR IN CR
NO. 439/2023 AGAINST THE PETITIONER REGISTERED BY
BOMMANAHALLI POLICE STATION REGISTERED BEFORE THE
CHIEF METROPOLITAN MAGISTRATE AT BANGALORE FOR THE
OFFENCES PUNISHABLE SECTION 143, 188, 268 R/W 149 OF
IPC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In this petition, petitioner seeks the following reliefs:
(i) Call for records, if necessary.
(ii) To quash the registration of FIR in Cr.No.439/2023 against the petitioner registered by Bommanahalli Police registered before the Chief Metropolitan Magistrate at Bangalore for the offences punishable under Section 143, 188, 268 read with 149 of IOC in the interest of justice and equity.
(iii) Grant such other order or orders, which this Hon'ble court may be pleased to pas in the circumstances of the case, to stall the abuse of process of court, in the interest of justice.-3-
NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR
2. A perusal of the material on record will indicate that pursuant to a complaint dated 02.12.2023 given by the respondent No.2; the respondent No.1-police authorities registered an FIR in Crime No.439/2023 for the offences punishable under Sections 143, 149, 188 and 268 read with Section 149 of Indian Penal Code, 1860.
3. In this context, the impugned complaint deserves to be extracted as hereunder:
¢£ÁAPÀ: 02/12/2023 ¸ÀܼÀ: ೆಂಗಳ ರು ನಗರ.
ರವ ೆ,
ಾ ಾ ಾ ಗಳ ,
ೊಮ ನಹ ೕ ಾ ೆ,
ೆಂಗಳ ರು ನಗರ.
ಇಂದ,
ೕತ".ಎ.$.
ೕ ಇ%&'ೆಕ)*,
ೊಮ ನಹ ೕ ಾ ೆ,
ೆಂಗಳ ರು ನಗರ.
+ಾನ,-ೇ,
.ಷಯ: +ಾನ, ಉಚ3 4ಾ,5ಾಲಯದ 78ೇ9ಶನ ಮತು; ಸ ಾ9 ಆ8ೇಶವನು>
ಉಲ?ಂ@A B.Cೆ. ಪEದ Fಾಸಕರು ಮತು; ೆಂಬ ಗರು ೊಮ ನಹ ೕ
ಾ ಾ Hಾ, ;ಯ ? ಅಕ ಮ ಕೂಟ Kೇ ಪ Lಭಟ4ೆ ನNೆAರುವ ಬ ೆO ಾನೂನು ಕ ಮ ಜರುQಸುವ ಕು ತು ದೂರು.-4-
NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR RೕಲSಂಡ .ಷಯ ೆS ಸಂಬಂ AದಂUೆ, V4ಾಂಕ 01/12/2023 ರಂದು ಅW98ಾರ-ಾದ X ೕ.YಾZಾ, ನಂ.123, [ೊಂಗಸಂದ , ೇಗೂರು ಮುಖ,ರKೆ;, ೆಂಗಳ ರು-68 ಎಂಬುವರು ೊಮ ನಹ ೕ ಾ ೆ ೆ [ಾಜ-ಾQ, V4ಾಂಕ 02/12/2023 ರಂದು ೊಮ ನಹ , ೇಗೂರು ಮುಖ,ರKೆ;ಯ ? ಇ%&'ೆಕ)* ವ ಾ9ವ ೆ ಸಂಬಂಧ ^ತ 7+ಾ9ಪಕ, ಾಂ ೆ ಮುಖಂಡ ಉ+ಾಪL X ೕ7Hಾ ೌಡ ರವರು ಹಣ ವಸೂ ದಂaೆ ನNೆಸುL;ರುವ .ರುದb ಪ Lಭಟ4ೆ ಹc ೊಂ$ದುd, ಈ ಪ Lಭಟ4ೆಯ ? ಧf7ವಧ9ಕ ಬಳಸಲು [ಾಗೂ ಸೂಕ; ಬಂ8ೋಬ ; 7ೕಡಲು ಅನುಮL 7ೕಡುವಂUೆ ೋ ಮನ. ಪತ ದ ಮುgೇನ ೋ ದdರು.
ಸದ ಅW98ಾರ ೆ +ಾನ, ಕ4ಾ9ಟಕ ಉಚh 4ಾ,5ಾಲಯ, i ಅW9 ಸಂgೆ,:
5781/2021 ಅಂLಮ ಆ8ೇಶ V4ಾಂಕ 01/08/2021 ರ 78ೇ9ಶನದಂUೆ, ' ೆಂಗಳ ರು ನಗರದ ? ..ಧ ಸಂಘಟ4ೆಗಳ /ವ,k;ಗಳ /-ಾಜkೕಯ ಪEಗಳ ನNೆಸುವ Rರವl ೆ/ ಧರlಗ ಂದ Kಾವ9ಜ7ಕ ೆ ಆಗುL;ರುವ ಪ L7ತ,ದ Uೊಂದ-ೆಗ ಂ8ಾQ m ೕಡಂ 'ಾn9 ಸoಳವನು> [ೊರತುಪ$A ೆಂಗಳ ನ 5ಾವp8ೇ ಸoಳಗಳ ? Rರವl ೆ ನNೆಸಲು ಅವ ಾಶ/ಅನುಮL ¤ÃqÀ¨ÁgÀzÉAzÀÄ, "LICENSING AND REGULATION OF PROTESTS, DEMONSTRATIONS AND PROTEST MARKES (BENGALURU CITY) ORDER, 2021" ಅನು> ಉಲ?ಂ@A Rರವl ೆ/ಧರlಗಳ ನNೆAದ ? ಾನೂನು ಕ ಮ ಜರುQಸುವpದನು> ಮುಂದುವ-ೆಸುವಂUೆ 78ೇ9ಶನವನು> 7ೕ$ರುತ;8ೆ. ಆದd ಂದ V4ಾಂಕ 02/12/2023 ರಂದು m ೕಡಂ 'ಾn9 [ೊರತುಪ$A ಉ ದ ಸoಳಗಳ ? ಪ Lಭಟ4ೆ ನNೆAದ ? LICENSING AND REGULATION OF PROTESTS, DEMONSTRATIONS AND PROTEST MARCKES (BENGALURU CITY) ORDER, 2021" ಅನು> ಉಲ?ಂಘ4ೆ +ಾಡುವp8ಾQದುd ಅಗತ, ಾನೂನು ಕ ಮ ಜರುQಸqಾಗುವp8ೆಂದು, ಈ s4ೆ>qೆಯ ? ಅW98ಾರರ ಮನ.ಯನು> LರಸS A9, ೕ 4ೋuೕ ಅನು> 7ೕಡqಾQತು;.
ಆ8ಾಗೂ, ಈ Vನ V4ಾಂಕ 02/12/2023 ರಂದು ೆ ೆO 11-30 ಗಂvೆ ಸಮಯದ ? . ಾ ಾ Hಾ, ;ಯ ೊಮ ನಹ , Kಾwc .Hೇ ಾನಂದ ವೃತ;ದ ಬ B.Cೆ. ಪEದ Fಾಸಕ-ಾದ ಎಂ.ಸLೕy -ೆ$z ರವರ 4ೇತೃತwದ ? ಸು+ಾರು 100 ಂದ 150 ಜನ ೆಂಬ ಗರು ಅಕ ಮ ಕೂಟ Kೇ , ^{ರ 7+ಾ9ಪಕ, ಾಂ ೆ ಮುಖಂಡ ಉ+ಾಪL X ೕ7Hಾ ೌಡ ರವರ .ರುದb `|ೂೕಷ ೆಗಳನು> ಕೂಗುUಾ; ಪ Lಭಟ4ೆಯನು> ನNೆA, -5- NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR Kಾವ9ಜ7ಕ ೆ Uೊಂದ-ೆ ಉಂಟು +ಾ$ದdಲ?8ೇ, +ಾನ, ಉಚh 4ಾ,5ಾಲಯದ 78ೇ9ಶನ ಮತು; +ಾನ, ೕ ಆಯುಕ;ರು, ೆಂಗಳ ರು ನಗರ ರವರ ಆ8ೇಶವನು> ಉಲ?ಂ@AರುUಾ;-ೆ. ಸದ ಸoಳದ ? ಅಕ ಮ ಕೂಟ Kೇ ದdರ s4ೆ>qೆಯ ? ಾ ಾ Aಬ}ಂVಯವರ ಮುgೇನ .$~ೕ ^L ೕಕರಣ +ಾ$Aದುd, ಪ Lಭಟ4ೆಯು ಮaಾ,ಹ> 12-20 ಗಂvೆ ಸು+ಾ ೆ ಮು ಾ;ಯ ೊಂಡ ನಂತರದ ? ಾ ೆ ೆ Hಾಪ ಬಂದು, .$~ೕ ^L ೕಕರಣದ ?ದವ d ರನು> Aಬ}ಂVಯವರ [ಾಗೂ ಸo ೕಯರ ಸ[ಾಯVಂದ ಗುL9ಸqಾQ 1] ಎಂ.ಸLೕy -ೆ$z ( ೊಮ ನಹ .aಾನಸYಾ •ೇತ ದ B.Cೆ. ಪEದ Fಾಸಕರು) 2] ಹ ೕy ಾಬು 3] ಮಂಜು4ಾ€ -ೆ$z 4] ಮುರು ೇy 5] ಅFೆ•ೕn 6] KೋಮFೇಖ* 7] XHಾW 8] ಾಬು-ೆ$z 9) ಸು7‚ (ಆ*.ಎ .ಎ ) 10] ಗುರುಮೂL9-ೆ$z 11] 4ಾಗ-ಾಜ 12] ಆನಂƒ 13] -ಾಮಚಂದ 14] „ೇತ% 15] ಸqಾಂ [ಾಗೂ ಇತರ-ೆಂದು ತEಣ ೆS L ದು ಬಂVದುd, ಉ ದವರ [ೆಸರುಗಳನು> ನಂತರದ ? L ಯ ೇ ಾQ8ೆ.
ಆದd ಂದ RೕಲSಂಡ ಘಟ4ೆಯ ಬ ೆO ಸೂಕ; ಾನೂನು ಕ ಮ ಜರುQಸಲು ೋರುUೆ;ೕ4ೆ.
4. A perusal of the impugned complaint will indicate that though the complainant alleges violation of the Licensing And Regulation Of Protest Demonstration And Protest Marches, (Bengaluru City) Order, 2021, the said provision has not been invoked while registering the impugned FIR against the petitioner, since, the said enactment does not contain any penal provision for the police authorities to take action as against the petitioner.
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5. Before adverting to the rival submissions as regards applicability of Section 143 and 149 are concerned, it would be necessary to refer to a judgment of a coordinate bench of this court in ATHAULLA JOKATTE AND OTHERS. VS. THE STATE OF KARNATAKA AND ANOTHER passed in Crl.P.No.4902/2023 dated 19.06.2023, wherein it is held as under:
The petitioners are before this Court calling in question the proceedings in Criminal Case No.1131 of 2020 pending on the file of the II Judicial Magistrate First Class Court, Mangaluru, registered for the offences punishable under Sections 143, 147, 148, 427, 336, 120B, 109 read with Section 149 of the Indian Penal Code, 1860, and Section 2(A) of the Karnataka Prevention of Destruction and Loss of Property Act, 1981.
2. Heard Sri Lethif B., learned counsel appearing for the petitioners, and Smt. K.P. Yashoda, learned High Court Government Pleader appearing for respondent No.1.
3. Learned counsel appearing for the petitioners submits that the issue in the lis stands covered by the judgment rendered by this Court in Criminal Petition No.6763 of 2020 disposed of on 11-3-
2022. This Court following the earlier judgment -7- NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR rendered by a Co-ordinate Bench of this Court has held as follows:
"2. The issue in the petition is akin to what is decided in Crl.P.No.3916/2018 disposed on 17.02.2020, wherein this Court has examined the identical facts and offences alleged against the petitioners therein. While so examining, this Court has held as follows:
"4. The gist of the complaint is that on 23.05.2017 at about 11.30 a.m., received a credible information that a group of people gathered on Queen's Road shouting slogans against the Government. Immediately, he went to the spot and found that 50 young men assembled illegally and disturbed the public and vehicles without prior permission from the station. On enquiry he found that they are the members of Campus Front of India Karnataka and protesting against interference religious and personal freedoms by imposing dress code in 'AIIMS Exam' which is against the personal and religious rights of our Constitution. Immediately they were disbursed and a case has been registered and after investigation, the charge sheet has been filed.-8-
NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR
5. It is the submission of the learned counsel for petitioners that though there is no substantial material as against petitioners/ accused Nos.1 to 48, the respondent have investigated the case and have filed the charge sheet against petitioners/accused Nos.1 to 48. It is his further submission that in order to file a charge sheet under Section 143 of IPC, the unlawful assembly must satisfy the ingredients as contemplated under Section 141 of IPC but none of the ingredients are satisfied in this case. It is his further submission that mere presence in an unlawful assembly, cannot render a person liable unless there was a common object, they were actuated by the common object and that object is one of those set out under Section 141 of IPC. It is his further submission that if the common object of an unlawful assembly is not proved, the accused persons cannot be convicted either under Section 143 of IPC or under Section 149 of IPC. It is his further submission that the prosecution has to prove the overt-acts as against the persons who have been alleged as a member of unlawful assembly. In order to substantiate his said contention, he has relied upon the decision of the Hon'ble Apex Court in the case of CHARAN -9- NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR SINGH AND OTHERS Vs. STATE OF UTTAR PRADESH reported in (2004) 4 SCC 205. It is his further submission that as per the Licensing and Controlling of Assemblies and Public Processions (Bangalore City) Order 2009, the permission is required in Bangalore City if the congregation of more than 250 persons assembling at one place with an intention to conduct the meeting, protest, to hear a public speech including political, social, religious and cultural meetings to which the public have got free access. The said condition specially says that no permission or license is required in Bangalore City if the congregation of more than 250 persons assembling at one place with an intention of conducting meeting to protest. It is the specific submission that petitioners/accused Nos.1 to 48 have given the letter dated 20.05.2017 seeking permission but no such permission is granted by the Commissioner of Police., under such circumstance, the said assembly cannot be held as an unlawful assembly and the provisions of Sections 141, 143, 147, 149, 188 of IPC are not attracted. On these grounds, he prayed to allow the petition and to quash the proceedings.
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6. Per contra, learned High Court Government Pleader vehemently argued and submitted that as per the Licensing and Controlling of Assemblies and Public Processions (Bangalore City) order, 2009 the congregation of more than 250 persons is required but as per Section 141 of IPC, an assembly of five or more persons is considered to be an unlawful assembly and if they have assembled with a common object, then under such circumstance, accused persons can be prosecuted for the alleged offences. It is his further submission that the contents of the complaint and other materials clearly indicate that they were intending to proceed to Raj Bhavan in that light, they have obstructed the public traffic, public movement and thereby, they have violated the provisions of Section 141 of IPC and other provisions of law. It is his further submission that there are independent eye- witnesses and they have also categorically stated with regard to the overt-acts of each of the accused persons and there is ample materials to connect the accused persons to the alleged crime. On these ground, he prayed to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR learned counsel appearing for both the parties and perused the records.
8. On perusal of records, it is the case of the prosecution that the petitioners/accused Nos.1 to 48 have assembled and were protesting against interference and dress code imposed by AIIMS exam and also have not obtained any permission from the concerned Authorities. But as could be seen from the Licensing and Controlling of Assemblies and Public Processions (Bangalore City) Order, 2009 assembly means a congregation of more than 250 persons assembling at one place with an intention of conducting meeting or protest, to hear a public speech including political, social, religious and cultural meetings to which the public have got free access, license is required only when more than 250 persons are there. Admittedly in the instant case, the contents of the complaint and other materials indicates that only 50 persons have assembled. In that light, a license said to have been is not necessary as per the Order of 2009. The only question which remains for consideration of this Court is that whether the assembly of petitioners/accused Nos.1 to 48 had constituted an unlawful assembly as per
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR Section 141 of IPC? In order to attract the said provision, the assembly must satisfy five ingredients which have been stated therein but on close reading of the contents of the complaint, charge sheet material and other materials, it indicates that none of the ingredients are present as contemplated under Section 141 of IPC.
9. Be that as it may. If 50 persons have assembled at a particular place, then under such circumstance, it cannot be held as an unlawful assembly. Mere presence of a person in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141 of IPC. This proposition of law has been laid down by the Hon'ble Apex Court in the case of CHARAN SINGH (Quoted supra) at paragraph No.13, it has been observed as under:
"13. Coming to the others who were armed with double-barrelled guns and country- made pistols, the question is regarding applicability of Section 149 IPC. Section 149 IPC has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word "object"
means the purpose or design and, in order to make it "common", it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Section 149 has to be strictly construed as equivalent to "in order to attain the common object". It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149 IPC may be different on different members of the same assembly."
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10. On close perusal of the charge sheet material, it indicates that none of the ingredients specify in Section 141 of IPC are present so as to attract the provisions of Sections 141, 143, 149, 188 of IPC. When that being the case, then under such circumstances, the proceedings initiated as against petitioners/accused Nos.1 to 48 appears to be not in accordance with law and the same is liable to be quashed.
11. Accordingly, petition is allowed and the proceedings initiated in C.C. No.23259/2017 pending on the file of VIII Additional CMM, Bengalulru for the offence punishable under Section 143 read with Section 149 of IPC is hereby quashed."
The aforesaid order passed by a Co-ordinate Bench of this Court would cover, the case at hand on all its fours. That apart, there were no witnesses that would speak about the incident alleged against the petitioners which has happened in a broad day light, apart from all the witnesses examined being police officials."
4. Therefore, in the light of the order passed by the Co-ordinate Bench of this Court supra, the following:
ORDER i. Criminal petition is allowed.
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR ii. Proceedings pending in Criminal Case No.1131 of 2020 before the II Judicial Magistrate First Class Court, Mangaluru, stands quashed.
5. So also the judgment in PRAKASH KARAT AND OTHERS VS. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR AND ANOTHER, 2022 SCC ONLINE KER 5243, the Kerala High Court held as under:
(1.) The Association of South East Asian Nations (ASEAN) was formed between ten nations of South East Asia. On 13/8/2009, India entered into a trade agreement with the ASEAN countries. The signing of the agreement was not well received by a few of the political parties. In a bid to compel the Union Government to withdraw from the ASEAN free trade agreement, the Communist Party of India (Marxist) decided to form a Statewide human chain in Kerala to be lined up on the sides of the National Highway. The human chain is alleged to have been created over a distance of 500 kilometres, from Kasaragode in the north to Thiruvananthapuram in the south.
(2.) An Advocate practising in the courts at Thiruvananthapuram preferred a private complaint before the Judicial First Class Magistrate Court, Thiruvananthapuram alleging that the human chain formed on 2/10/2009 between 5 p.m. to 8 p.m. at the
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR behest of accused 1 to 12 and 10,000 other identifiable persons resulted in the commission of offences under Sec. 143, 147, 149 and 283 of the Indian Penal Code,1860 apart from sec. 38 r/w sec. 52 of the Kerala Police Act, 1960.
(3.) The complaint also refers to another incident on the same day at 3 p.m., when the Sub Inspector of Police attached to the Museum Police Station, Thiruvananthapuram, noticed ten young men constructing an open stage on the road and footpath in a manner causing obstruction to the right of way of the public. According to the complainant, despite the police commanding them to desist from the construction, the young men proceeded to set up an open platform and enabled accused 1 to 12 to address the party workers as part of the human chain. The complaint further alleged that though Crime No.626 of 2009 was registered against ten identifiable persons, no steps were initiated to arrest the accused or to remove the stage constructed and that the acts of those accused constituted a violation of the decisions of this Court in Peoples Council for Social Justice v. State of Kerala (1997 (2) KLT 301) as well as Kerala Vyapari Vyavasayi Ekopana Samithi v. State of Kerala (2004 (2) KLT 857). On the above allegations, the complainant sought to prosecute the accused.
4. The sworn statement of the complainant was taken, and his witnesses were also examined. Thereafter, the learned Magistrate took cognizance of the offence as S.T. No. 4129 of 2012 and issued process Court, to the
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR accused. Later, by order dated 14.11.2012, the case was transferred to the Chief Judicial Magistrate's Thiruvananthapuram and renumbered as C.C. No. 1530 of 2012.
5. Petitioners are accused 1 to 12. All of them claim to be leaders of the Communist Party of India (Marxist). They have approached this Court under section 482 of Cr.P.C, alleging that the complaint is filed with malafide intentions and for oblique motives and that the offences alleged are not made out.
6. Sri. Gilbert George Correya, the learned counsel for the petitioners contended that the accused, which include the present Chief Minister of Kerala, the former General Secretary of the Communist Party of India (Marxist), as well as the former Chief Minister of Kerala and other senior leaders of the Communist Party of India, have never acted contrary to law. It was submitted that no one had come forward with any personal grievance or inconvenience or even prejudice that was caused on account of the human chain programme organised by the Communist Party of India (Marxist). The learned counsel submitted that the human chain was formed in exercise of their right under Article 19 of the Constitution of India as a measure of showing their protest against an act that they presumed to be contrary to their beliefs. According to the learned counsel, the offences alleged are not made out against
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR the petitioners, and hence the private complaint is liable to be quashed.
7. Sri. T.A. Shaji, the learned Director General of Prosecution, assisted by Sri. K. A Noushad, the learned Public Prosecutor submitted that the offences alleged are not made out and further that the allegations are politically motivated. It was also submitted that, even if the entire proceedings are continued, the trial cannot end in the conviction of the accused for more reasons than one. The learned Director General of Prosecution also submitted that this is a fit case where the jurisdiction of this Court under section 482 ought to be invoked to quash the proceedings.
8. Though notice to the defacto complainant was served, it is seen from the records that except for a request to file an objection to the stay petition on 26.02.2015, there has not been any representation for the second respondent thereafter.
9. Political leaders of the Communist Party of India (Marxist) face indictment under sections 143, 147, 149 and section 283 of the Penal Code, 1860, apart from sections 38 and 52 of the Kerala Police Act, 1960. Section 143 of IPC deals with punishment for unlawful assembly. while section 147 deals with punishment for rioting. Section 149 makes an act committed by any member of the unlawful assembly in prosecution of their common object punishable as if the same was done by
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR every member of the assembly. Section 283 makes danger or obstruction in a pathway punishable. Sections 38 and 52 of the erstwhile Kerala Police Act make the failure to conform to lawful and reasonable directions of police officers penal and punishable.
10. True that the accused are the leaders of a political party. However, the leadership of a political party is not an immunity against prosecution. Even if the accused are leaders of the society, if an offence is made out from the complaint, they are liable to face prosecution. But on the other hand, if the offences alleged are not made out from the complaint, the position of the accused shall not deter the Court from interfering in an unnecessary prosecution. Thus the question to be considered is whether, from the allegations in the private complaint, the offences alleged are made out or not.
11. Of the offences alleged, one of the main allegations relates to unlawful assembly, which is the basis for the offences under sections 143, 147 and 149 of the IPC. The term unlawful assembly comes under chapter VIII, dealing with public tranquillity. The term is defined in Section 141 of the IPC and reads as follows:
"141. Unlawful assembly.-An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR 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 assembled, may subsequently become an unlawful assembly.
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12. A reading of the above provision reveals that the ingredients of unlawful assembly are:
(i) there must be an assembly of five or more persons,
(ii) the members of the assembly must have a common object,
(iii) the common object must be any one of the following five:
(a) to overawe by criminal force or show of criminal force, the Government or any public servant,
(b) to resist the execution of any law or legal process, or
(c) to commit mischief or criminal trespass or other offences,
(d) by criminal force or show of criminal force to take or obtain possession of any property or deprive enjoyment of a right of way or use of water or other incorporeal rights
(e) by criminal force or show of criminal force to compel any other person to do what he is legally not
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR bound to do or omit to do that which he is legally bound to do.
13. A reading of the section indicates that every assembly of five or more persons by itself will not become an unlawful assembly. An assembly of five or more persons will become unlawful only when they have a common object and the said object falls within the categories mentioned as first to fifth in section 141 IPC. When the common object of the assembly does not fall within any of the five categories specified in section 141, even if the number of the assembly is more than five, the act alleged will not attract the offence of unlawful assembly. Thus the essence of the offence of unlawful assembly lies in the consensus of purpose of more than five persons to commit an act specified in section 141 of IPC.
14. It is apposite to notice that of the five categories in the provision, three of them have criminal force as a necessary ingredient. Force is defined in section 349 IPC, while criminal force is defined in section 350 IPC. The intentional use of force for committing an offence or for causing injury, fear or annoyance is an essential requirement of criminal force. The remaining two facets require resistance to the execution of law or of legal process or the commission of the offence of mischief or criminal trespass.
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15. The principles constituting the offence of unlawful assembly have been succinctly analysed by the Supreme Court in Masalti v. State of Uttar Pradesh (AIR 1965 SC
202) and also in Akthar Alam alias Aktarul Sheikh v. State of West Bengal [(2009) 7 SCC 415]. Reference to the decision in Aravindan v. State of Kerala (1983 KLT
193) is also relevant. In Aravindan's case this Court observed that "the mere fact that an assembly consists of five or more persons is likely to disturb the public peace does not prove that the common object of the assembly is one of those enumerated in the Section. But there, S. 151 of the Penal Code, 1860 may come in and it has been held that the common object must be an immediate one and not to be carried out at some future time".
16. On a perusal of the complaint, it is seen that though the complainant alleges that more than five persons had assembled together, there is no mention of any of the ingredients that can attract any one of the five facets described as 'first to fifth' of section 141 IPC. The complainant has no case that the accused had a common object to commit any offence or, for that matter, any of the offences specified in section 141 IPC.
17. The assembly was apparently, as alleged by the complainant himself, formed only to express their protest against the Government signing an agreement with the ASEAN Countries. No criminal force or show of criminal force is alleged to have been committed by any one of
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR the accused or, for that matter, by any of the assembly of 10,000 and more persons. There is not even a whisper in the complaint about any resistance to the execution of any law or legal process. There is also no allegation of any mischief or criminal trespass committed by any member of the assembly or even any deprivation of the right of way by the use of criminal force. There is also no allegation of compelling any person to do that which he is not legally bound to do by use of criminal force.
18. As mentioned earlier, section 141 IPC significantly uses the words 'criminal force' in the three facets of the provision. Thus, a protest or an assembly of persons without any criminal force or show of criminal force would not make the assembly unlawful. An assembly of more than five persons gathered for a peaceful protest cannot fall within the term unlawful assembly. The right to protest peaceably is an essential ingredient of the fundamental right under Article 19(1)(a) and 19(1)(b) of the Constitution of India. An assembly of persons without arms or without criminal force or without any intent to commit an offence can only be a lawful assembly, which is not prohibited. Such an assembly is a formation in the exercise of the right to freedom of every citizen guaranteed under Article 19(1) of the Constitution.
19. In this context, it is appropriate to observe that the right to freedom of speech and expression and the right to form an assembly guaranteed under the Constitution will be a dead letter if every assembly is regarded as
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR offensive conduct. The right to dissent and the freedom to air views contrary to the views of the government is not an offensive conduct. In fact, the right to dissent is the core of every democratic establishment. The constitutional scheme of our Country embodies the salutary principle of the right to dissent. When the dissent is expressed without causing any harm or even a significant inconvenience, it would be too puerile to proceed criminally against the dissenters. Merely because the dissent is not acceptable to the majority, that is not a reason to initiate criminal action unless the dissent was coupled with violent, disorderly or damaging conduct by any member of the assembly.
20. In this context, I am mindful of the decision in Amit Sahni (Shaheen Bagh, In Re) v. Commissioner of Police [(2020) 10 SCC 439], where the Supreme Court had while upholding the right to dissent, directed the protests to be carried out only in designated areas. In the said decision, the Court was concerned with the indefinite and long periods of protests being held at Shaheen Bagh, causing absolute inconvenience to the public. The situation is different in the present case.
21. In the instant case, there is no allegation of any criminal force used by any of the accused or any of the members of the said assembly. There is no allegation of any common object for committing an offence or that the human chain lasted indefinitely. There is also no case that there was any inconvenience or obstruction to the
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR public for an extended period of time. The complainant has not alleged that the normal life of the community was crippled or paralysed. There is not even an allegation that the complainant was obstructed. In such circumstances, I am of the view that the conduct alleged against the petitioners does not satisfy the ingredients of section 141, IPC, i.e. unlawful assembly.
22. When the allegations do not satisfy the ingredients of unlawful assembly, the offences under sections 143, 147 and 149 IPC cannot be attracted. Therefore, petitioners cannot be prosecuted for the aforesaid offences.
23. Another allegation in the complaint is that under section 283 IPC, which reads as follows.
"283. Danger or obstruction in public way or line of navigation. Whoever, by doing any act, or by omitting to take order with any property in his possession or under his charge, causes danger, obstruction or injury to any person in any public way or public line of navigation, shall be punished with fine which may extend to two hundred rupees."
24. The complaint alleges that the obstruction in the form of constructing a stage or a pandal was carried out by ten other persons and not by the petitioners at all.
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR There is no whisper of an allegation that petitioners 1 to 12 were involved in the construction of the stage pandal. The complainant has not alleged any role for the petitioners in constructing the open stage/platform. The allegation is that petitioners had sat and spoken from inside the pandal. Merely because petitioners sat in the open stage/platform, they cannot be attributed with any overt act in the construction of the said stage/platform. In this context, it is relevant to notice that the complainant himself alleged that Crime No. 626 of 2009 of the Museum Police Station was registered against the ten persons found to be constructing and supervising the construction of the said stage. It was submitted across the Bar that the said crime was investigated, and a report was submitted referring the crime as 'undetected'. In the absence of any allegation against petitioners 1 to 12, proceeding in a criminal action against them for the offence under section 283 IPC is an abuse of the process of law.
25. As far as the offences under sections 38 and 52 of the Kerala Police Act 1960 are concerned, they relate to the failure to abide by the lawful directions of the police. There is no allegation that petitioners had failed to abide by any lawful directions of the police. On the contrary, the said allegation is specifically raised against ten other persons and not the petitioners. The averments in the complaint, thus, are not sufficient to proceed against the petitioners for the said offences.
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26. Perceived from the angle of section 95 of IPC also, this Court is of the view that the proceedings against the petitioners are liable to be quashed. Section 95 IPC, states that "Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm". The aforesaid section embodies the principle of 'de minimis non curat lex' meaning that "law does not take into account trifles". The intention behind the aforesaid provision is to avoid penalising negligible wrongs or trivial offences. There are innumerable acts in our daily life which may amount to crimes in the strict sense of the language employed in the statute. However, if prosecution is initiated for every such triviality, the system will crumble. Section 95 comes to the aid in such instances.
27. However, care must be taken before applying the principle. In Veeda Menezes v. Yusuf Khan Haji Ibrahim Khan (AIR 1966 SC 1773), the Supreme Court observed that "whether an act which amounts to an offence is trivial would undoubtedly depend upon the nature of the injury, the position of the parties, the knowledge or intention with which the offending act was done, and other related circumstances". The principle of de minimis non curat lex was applied by this Court in the decision in Narayanan v. State of Kerala (1986 KLT 1265) where it was held that, if the harm caused or intended to be caused is so slight that no person of ordinary sense and
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR temper would complain of such harm, the principle can be applied. Similarly, In Re Attappa (AIR 1951 Mad 759) the Madras High Court held that even if an obstruction is caused, if the harm caused is so slight, section 95 of the IPC will apply.
28. Applying the principle in section 95 IPC, it can unhesitatingly be held that the allegations can at the most reveal some obstructions caused on the public way while the petitioner held their hands for a limited period of time. Even if it is assumed that any slight obstruction was caused to the public, the same was only a trifle. This is evident from the fact that, no one other than the complainant had any grievance. In this context, the cost of adjudication, the time required to be spent for prosecution, the absence of any harm caused to the complainant or on any other person, absence of any violence and the intention of engaging in a peaceful protest are factors that cannot be lost sight of.
29. Having regard to all the above reasons this Court is of the opinion that continuance of proceedings against the petitioners as C.C. No. 1530 of 2012 on the files of the Chief Judicial Magistrate Court, Thiruvananthapuram, is an abuse of the process of court and is liable to be interfered with.
30. Hence, I quash Annexure-1, and all further proceedings in S.T. No. 4129/2012 on the files of the Judicial First Class Magistrates Court- I,
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR Thiruvanathapuram, now renumbered as C.C. No. 1530 of 2012 on the files of the Chief Judicial Magistrate Court, Thiruvananthapuram and allow this petition.
6. If the impugned complaint is examined keeping in mind the principles enunciated in the aforesaid judgment, it is clear that except stating that on 02.12.203 the petitioner along with others had formed an unlawful assembly, there are absolutely no other allegation against the petitioner and the impugned complaint contains vague, bald and omnibus allegation, which are not sufficient to attract the ingredients contained in Section 143, 149 or 268 of Indian Penal Code, 1860 and consequently the impugned proceedings qua the petitioner deserves to be quashed.
7. Insofar as the offences punishable under Section 188 is concerned, it is well settled that the said provision can be invoked only by the competent officer as contemplated under Section 195 of the Code of Criminal Procedure, 1973 as held by this court at page 40 SRI.UMANATH A KOTIAN VS.
STATE OF KARNATAKA AND ANOTHER passed in Crl.P.No.4745/2024 dated 08.08.2024, which followed
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR earlier judgment of the Madras High Court in JEEVANANDHAM AND OTHERS VS. STATE REP. BY INSPECTOR OF POLICE AND ANOTHER, 2018 SCC ONLINE MAD 13698.
8. In JEEVANANDHAM supra, the Madras High Court held as under:
An important issue has arisen for consideration in these batch of cases. It is seen that a flurry of cases registered by the Police under Section 188 of Indian Penal Code [IPC], along with other offences becomes a subject matter of challenge before this Court on a daily basis. In spite of certain earlier decisions with regard to the manner in which an offence under Section 188 of IPC can be proceeded against certain persons who are alleged to have committed the said offence, and who has to file a complaint with regard to such an offence, has been spelt out in those decisions. Despite the same, the Police continue to register an FIR under Section 188 of IPC along with other offences. Therefore, this Court thought it fit to discuss the law on the point in detail and give certain guidelines to be followed in future by the Police while dealing with an offence under Section 188 of IPC.
2.The provision under Section 188 of IPC is extracted hereunder:
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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 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 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?.
Explanation: It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.
3. Lord Macaulay's Report on this provision will be of some interest before proceeding to deal with the provision. The same is extracted hereunder.
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR Thus it may happen that a religious procession which is in itself perfectly legal, and which, while it passes through many quarters of a town is perfectly harmless, cannot, without great risk of tumult and outrage, be suffered to turn down a particular street inhabited by persons, who hold the ceremony in abhorrence, and whose passions are excited by being forced to witness it. Again, there are many Hindu rites which in Hindu temples and religious assemblies, the law tolerates, but which could not with propriety be exhibited in a place which English gentlemen and ladies were in the habit of frequenting, for purpose of exercise. Again, at a particular season, hydrophobia may be common among the dogs at a particular place, and it may be highly advisable that all the people at that place should keep their dogs strictly confined. Again, there may be a particular place in a town in which the people are in the habit of using as a receptacle for filth. In general, this practice may do no harm, but an unhealthy season may arrive when it may be dangerous to the health of the population, and under such circumstances it is evidently desirable that no person should be allowed to add to the nuisance. It is evident, that it is utterly impossible for the legislature to mark out the route of all the religious processions in India, to specify all the public walks frequented by English ladies and gentlemen, to foresee in what months and in what places hydrophobia will be
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR common among dogs,, or when a particular dunghill may become dangerous to the health of a town. It is equally evident that it would be unjust to punish a person who cannot be proved to have acted with bad intentions for doing today what yesterday was a perfectly innocent act, or for doing in one street what it would be perfectly innocent to do in another street, without giving him some notice.
What we propose, therefore, is to empower the local authorities to forbid acts which these authorities consider dangerous to the public tranquillity, health, safety, or convenience, and to make it an offence for a person to do anything which that person knows to be forbidden, and which may endanger the public tranquillity, health, safety, or convenience. It will be observed that we do not given the local authorities, the power of arbitrarily making any thing an offence. For unless, the Court before which the person who disobeys the order is tried shall be of opinion that he has done something tending to endanger the public tranquillity, health, safety, or convenience, he will not be liable to punishment. The effect of the order of the local authority will be merely to deprive the person who knowingly disobeys the order of the plea that he had no bad intentions. He will not be permitted to allege that if he has caused harm, or risk of harm, it was without his knowledge.
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR Thus, if in a town where no order for the chaining up of dogs has been made, A suffers his dog to run about loose, A will be liable to no punishment for any mischief which the animal may do, unless it can be shown that A knew the animal to be dangerous. But if an order for confining dogs has been issued, and if A knew of that order, it will be no defense for him to allege, and even to prove, that be believed his dog to be perfectly harmless. If the Court think that A's disobedience has caused harm, or risk of harm, A will be liable to punishment. On the other hand if the Court think that there was no danger, and that the local order was a foolish one, A will not be liable to punishment.?
4.When a public servant who is lawfully empowered, promulgates by an order to abstain from a certain act, or to take certain order with certain property in his possession or under his management, who ever disobeys such an order, the public servant can enforce his mandate or he can make over the person who disobeyed the order, to a Criminal Court to be dealt with under the Section.
5. To constitute an offence under Section 188 of IPC, mere disobedience of an order is not sufficient. The disobedience should also lead to enumerated consequences, in the second or third limb of the Section to constitute it as an offence.
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6. The words ?public servant lawfully empowered to promulgate" in Section 188 IPC are significant. A person may be legally justified, though not lawfully empowered. For instance, a Police Inspector may stop the playing of music or speech made by some one, if he apprehends breach of peace, but he is not ?lawfully empowered? to do so within the meaning of the Section, which is limited to specifically authorised acts. To put it simply the essential ingredients of this offence are ;
i)Promulgation of a legal order,
ii)its communication to the accused,
iii)its disobedience by him, and
iv)the injurious consequence as described in the section.
7. Promulgation of an order would mean ?to make known by public declaration, to publish; to disseminate or to proclaim". The normal practice that is followed in our State is, by way of a publication in Gazette and by announcing the same in newspapers with wide circulation.
8. The next question that arises for consideration is, the manner in which the complaint can be registered in a case involving in Section 188 of IPC and when cognizance could be taken by a Magistrate for an offence under Section 188 of IPC. For this purpose, it will be beneficial to extract Section 195(1)(a)(i) of Criminal Procedure Code, 1973.
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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 Court 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) ........
(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;
9. A plain reading of the provision clearly brings out the procedure. A complaint in writing from the public servant is essential for a Magistrate to take cognizance of an offence under Section 188 of IPC.
10. Mr.M.Karunanithi, learned counsel for the petitioners in some of the petitions, wherein, the Final Report has been challenged on the ground that the Magistrate cannot take cognizance, based on an FIR registered by the Police, and a Final Report filed after investigation under Section 173(2) of Cr.P.C., made the following submissions.
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR Section 195(1)(a)(i) mandates the filing of a complaint in writing by a public servant and the Police cannot register an FIR and investigate the case and thereafter file a Final Report, in cases where the alleged offence is under Section of 188 IPC.
Section 2(d) of Cr.P.C defines a complaint as follows:
(d) Complaint? means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Section 2(r) defines a Police Report as follows:
(r) "police report" means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173;
11. By referring to the above two definitions, the learned counsel would submit that Cr.P.C has consciously differentiated between a Complaint and a Police Report and he also emphasized that a complaint does not include a Police Report, even under the very definition itself. Therefore, the learned counsel would submit that the Final Report submitted by the Police and taken cognizance by the concerned Magistrate, is illegal and void ab initio. The learned counsel also brought to the notice of this Court Section 190 of Cr.P.C which is extracted here under.
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190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
12. By pointing out to the above provision, the learned counsel would submit that Section 195 of Cr.P.C is an exception to Section 190 of Cr.P.C. Section 190 of Cr.P.C provides for the various modes in which a Magistrate can take cognizance of an offence. Section 195 of Cr.P.C carves out an exception and states that no Court shall take cognizance of certain offences, unless the stipulation under Section 195 of Cr.P.C is satisfied. Therefore, the learned counsel would submit that the present case is governed by Section 195 and not Section 190 of Cr.P.C.
13. .Mr.Rajesh Saravanan, learned counsel, appearing for some of the petitioners, apart from adopting the submissions made by Mr.M.Karunanithi, also added one
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR more important submission for consideration. In cases in which he is appearing, the cognizance taken by the learned Magistrate on a Final Report filed by the Police, apart from being challenged for violation of Section 195(1)(a), is also challenged on the ground that the complainant, the Investigating Officer and also the person who filed the Final Report, were all the same and therefore, the very Final Report itself, according to the learned counsel is vitiated and is liable to be set aside.
The learned counsel brought to the notice of this Court the following judgments, to substantiate his arguments.
a) Daulat Ram .Vs. State of Punjab reported in AIR 1962 SC 1206.
b) Saloni Arora .Vs. State (NCT of Delhi) reported in AIR 2017 SCC 391
c) Mohan Lal .Vs. The State of Punjab in Crl.A.No.1880 of 2011 by the Hon'ble Supreme Court.
14. Mr.Pandithurai, learned counsel appearing for some of the petitioners, apart from adopting the arguments made by the other counsel, also brought to the notice of this Court the following judgments.
a) C.Muniappan and Others .Vs. State of Tamil Nadu reported in (2010) 9 SCC 567.
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b) V.Palaniswamy .Vs. The Inspector of Police in Crl.OP.No.13251 of 2009 dt.4.02.2015 (Madras High Court).
c) M.Balaji .Vs. The Principal Home Secretary, Government of Tamil Nadu, Secretariat, Chennai and Others in W.P.No.17768 of 2017 dt. 9.4.2018 (Madras High Court).
15. Mr.M.Jothi Basu, learned counsel appearing for some of the petitioners, apart from adopting the submissions made by other counsel also brought to the notice of this Court, the scope of Section 30(2) of the Police Act. The learned counsel would submit that the promulgation that is referred to under Section 188 IPC, is normally passed in all these cases, under Section 30(2) of the Police Act. The learned counsel after referring to the said provision would submit that the said power is only regulatory in nature and it is not a blanket power to trifle any democratic dissent of the citizens by the Police. Therefore, the learned counsel would submit that the power under Section 30(2) of the Police Act can be exercised only within the ambit of the provisions of the Constitution, which gives a citizen, freedom of speech and expression with reasonable restrictions and the restrictions imposed under the promulgation must satisfy the test of reasonableness. The learned counsel brought to the notice of this Court the judgment in S.Veerakumar .Vs. Deputy Superintendent of Police, Gobi Sub Division, Gobichettipalayam, Erode District and Another reported in (2012) 5 MLJ 1039.
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16. Per contra, the learned Additional Public Prosecutor Mr.M.Chandrasekaran made the following submissions.
Section 188 of IPC is a cognizable offence and therefore the Police is duty bound to register an FIR under Section 154 of Cr.P.C immediately on an information and proceed to investigate the case as provided under Section 156 and 157 of Cr.P.C and thereafter file a Final Report under Section 173(2) of Cr.P.C.
The learned counsel would submit that such a Police Officer is also a public servant under Section 21 of IPC and therefore he is entitled to register an FIR, investigate the case and file a Final Report and such Final Report can be taken cognizance by the Judicial Magistrate under Section 190 of Cr.P.C.
The learned counsel made further
submission that Section 41 of Cr.P.C gives
sufficient powers to a Police Officer to even arrest a person who commits, in the presence of a Police Officer, a congnizable offence. The learned counsel would further submit that the Police Officer, if he is satisfied, can cause such arrest if necessary in order to prevent such a person from committing any further offence. Therefore, the learned counsel would submit that the Police Officer cannot remain a mute spectator, when an offence under Section
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR 188 IPC is committed, in his presence and he has to necessarily take action, since Section of 188 of IPC is a cognizable offence.
The learned counsel would further submit that only taking cognizance of an offence under Section 188 of IPC is a bar without a complaint as contemplated under Section 195(1)(a)(i) and that does not mean that the Police cannot register an FIR and investigate the case. The bar imposed under Section 195(1)(a)(i) cannot be expanded to such an extent.
The learned Additional Public Prosecutor further contended that, even assuming Section 195(1)(a)(i) to be a bar for taking cognizance of an offence under Section 188 of IPC, when the case involves other offences, the proceedings cannot be quashed insofar as the other offences are concerned.
The learned Additional Public Prosecutor relied upon the following judgments.
a) S.K.Sinha, Chief Enforcement .Vs. Videocon International Ltd ., & Ors in Crl.A.No.175 of 2007 dated 25.1.2008, [Hon'ble Supreme Court of India].
b) Bechar Vala .Vs. State of Gujarat on 27.12.2002,[Gujarat High Court].
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CRL.P No. 508 of 2025
HC-KAR
c) G.S.R.Krishnamurthi .Vs.
M.Govindaswamy, Income-Tax , on
13.6.1991 [Madras High Court]
d) K.Muhammed Aslam .Vs. State rep.by Public on 24.3.2010, [Kerala High Court].
e) V.Gowthaman & Others .Vs. State, rep.by its Inspector of Police, St.Thomas Mount Police Station, Chennai reported in 2018 4 CTC 252.
f) Mithun Mohan and Others .Vs. State & Others in Crl.M.C.No.5291 of 2014 on 6.6.2014, [Kerala High Court].
g) E.K.Palanisamy .Vs. The Deputy Superintendent of Police, Erode Town Sub- Division, Erode District in Crl.O.P.No.7699 of 2009 dt.18.08.2009, [Madras High Court].
17. This Court has carefully considered the submissions made by the learned counsel appearing for the respective parties.
18. This Court will deal with the various judgments cited by the Bar with respect to the scope of Section 195(1)(a)(i) of Cr.P.C qua Section 188 of IPC. Some of the judgments are cited, and the relevant paragraphs are extracted here under:
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a) In Daulat Ram .Vs. State of Punjab reported in AIR 1962 SCC 1206, the relevant paragraphs are extracted hereunder:
3........The words of the section, namely, that the complaint has to be in writing by the public servant concerned and that no court shall take cognizance except on such a complaint clearly show that in every instance the court must be moved by the appropriate public servant. We have to decide therefore whether the Tehsildar can be said to be the public servant concerned and if he had not filed the complaint in writing, whether the police officers in filing the charge sheet had satisfied the requirements of s. 195. The words "no court shall take cognizance" have been interpreted on more than one occasion and they show that there is an absolute bar against the court taking seisin of the case except in the manner provided by the section.
4.Now the offence under s. 182 of the Penal Code, if any, was undoubtedly complete when the appellant had moved the Tehsildar for action.
Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. In making his report to the Tehsildar therefore, if the appellant believed that some action would be taken (and he had no reason to doubt that it would not) the offence under that
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR section was complete. It was therefore incumbent, if the prosecution was to be launched, that the complaint in writing should be made by the Tehsildar as the public servant concerned in this case. On the other hand what we find is that a complaint by the Tehsildar was not filed at all, but a charge sheet was put in by the Station House Officer. The learned counsel for the State Government tries to support the action by submitting that s. 195 had been complied with inasmuch as when the allegations had been disproved, the letter of the Superintendent of Police was forwarded to the Tehsildar and he asked for "a calendar". This paper was flied along with the charge sheet and it is stated that this satisfies the requirements of s. 195. In our opinion, this is not a due compliance with the provisions of that section. What the section comtemplates is that the complaint must be in writing by the public servant concerned and there is no such compliance in the present case. The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant namely the Tehsildar in this case. The trial was thus without jurisdiction ab inito and the conviction cannot be maintained?.
b) C.Muniappan and Others .Vs. State of Tamil Nadu reported in (2010) 9 SCC 567.
Charges under Section 188 IPC:
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27. Section 195 Cr.PC reads as under :
"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 Court 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 ........
except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"
28. Section 195(a)(i) Cr.PC bars the court from taking cognizance of any offence punishable under Section 188 IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. The object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant. The court lacks competence to take cognizance in certain types of offences enumerated therein. The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill-will or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions. This provision has been carved out as an exception to the general rule contained under Section
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR 190 Cr.PC that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person. Other provisions in the Cr.PC like sections 196 and 198 do not lay down any rule of procedure, rather, they only create a bar that unless some requirements are complied with, the court shall not take cognizance of an offence described in those Sections. (vide Govind Mehta v. The State of Bihar, AIR 1971 SC 1708; Patel Laljibhai Somabhai v. The State of Gujarat, AIR 1971 SC 1935; Surjit Singh & Ors. v. Balbir Singh, (1996) 3 SCC 533; State of Punjab v. Raj Singh & Anr., (1998) 2 SCC 391; K. Vengadachalam v. K.C. Palanisamy & Ors., (2005) 7 SCC 352; and Iqbal Singh Marwah & Anr. v.
Meenakshi Marwah & Anr., AIR 2005 SC 2119).
29. The test of whether there is evasion or non- compliance of Section 195 Cr.PC or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of a public servant is required. In Basir-ul-Haq & Ors. v. The State of West Bengal, AIR 1953 SC 293; andDurgacharan Naik & Ors v. State of Orissa, AIR 1966 SC 1775, this Court held that the provisions of this Section cannot be evaded by describing the offence as one being punishable under some other sections of IPC, though in truth and substance, the offence falls in a category mentioned in Section 195Cr.PC. Thus, cognizance of such an offence cannot be taken by mis- describing it or by putting a wrong label on it.
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30. In M.S. Ahlawat v. State of Haryana & Anr., AIR 2000 SC 168, this Court considered the matter at length and held as under :
"....Provisions of Section 195 CrPC are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section."
(Emphasis added)
31. In Sachida Nand Singh & Anr. v. State of Bihar & Anr., (1998) 2 SCC 493, this Court while dealing with this issue observed as under :
"7. ..Section 190 of the Code empowers "any magistrate of the first class" to take cognizance of "any offence" upon receiving a complaint, or police report or information or upon his own knowledge. Section 195 restricts such general powers of the magistrate, and the general right of a person to move the court with a complaint to that extent curtailed. It is a well- recognised canon of interpretation that provision curbing the general jurisdiction of the court must normally receive strict interpretation unless the statute or the context requires otherwise."
(Emphasis supplied)
32. In Daulat Ram v. State of Punjab, AIR 1962 SC 1206, this Court considered the nature of the provisions of Section 195 Cr.PC. In the said case, cognizance had
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR been taken on the police report by the Magistrate and the appellant therein had been tried and convicted, though the concerned public servant, the Tahsildar had not filed any complaint. This Court held as under
:
"4...The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant, namely, the Tahsildar in this case. The trial was thus without jurisdiction ab initio and the conviction cannot be maintained. 5.The appeal is, therefore, allowed and the conviction of the appellant and the sentence passed on him are set aside."
(Emphasis added)
33. Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the pubic servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195Cr.PC are mandatory. Non- compliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction?.
c)Saloni Arora .Vs. State of NCT of Delhi reported in AIR 2017 SCC 391.
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6) In the aforementioned proceedings, the State Prosecuting Agency sought to prosecute the appellant for commission of an offence punishable under Section 182 IPC. The appellant, felt aggrieved of this action of the prosecuting agency, filed an application for her discharge on the ground that since no procedure as contemplated under Section 195 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ?the Code?) was followed by the prosecution, the appellant cannot be prosecuted for such offence.
10) As rightly pointed out by the learned counsel for the parties on the strength of law laid down by this Court in the case of Daulat Ram vs. State of Punjab, (AIR 1962 SC 1206) that in order to prosecute an accused for an offence punishable under Section 182 IPC, it is mandatory to follow the procedure prescribed under Section 195 of the Code else such action is rendered void ab initio.
11) It is apposite to reproduce the law laid down by this Court in the case of Daulat Ram (supra) which reads as under:
There is an absolute bar against the Court taking seisin of the case under S.182 I.P.C. except in the manner provided by S.195 Crl.P.C. Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. The
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR offence under S.182 is complete when a person moves the public servant for action. Where a person reports to a Tehsildar to take action on averment of certain facts, believing that the Tehsildar would take some action upon it, and the facts alleged in the report are found to be false, it is incumbent, if the prosecution is to be launched, that the complaint in writing should be made by the Tehsildar, as the public servant concerned under S.182, and not leave it to the police to put a charge-sheet. The complaint must be in writing by the public servant concerned. The trial under S.182 without the Tehsildar?s complaint in writing is, therefore, without jurisdiction ab initio.? (Emphasis supplied)
12) It is not in dispute that in this case, the prosecution while initiating the action against the appellant did not take recourse to the procedure prescribed under Section 195 of the Code. It is for this reason, in our considered opinion, the action taken by the prosecution against the appellant insofar as it relates to the offence under Section 182 IPC is concerned, is rendered void ab initio being against the law laid down in the case of Daulat Ram (supra) quoted above?.
d. Palaniswamy and Others .Vs. The Inspector of Police in Crl.O.P.No.13251 of 2009 dt.04.02.2015.
4.Heard the learned Additional Public Prosecutor appearing for the respondent and he
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR also submitted that as per Section 195 of Cr.P.C., a complaint can be filed only by a public servant and police cannot file a charge sheet for the offence punishable under Section 188 of I.P.C. and read with Section 195 of Cr.P.C. He further submitted that no Court shall take cognizance as stated therein except on a complaint given by a public servant concerned.
5.Admittedly, in this case, on the basis of the complaint given police enquired, investigated and filed charge sheet and therefore, the Court should not have taken cognizance of the charge sheet filed by the respondent police. In the decision reported in (2004) M.L.J. (Crl) 633 (K.C.Palanisamy and others Vs. State represented by Inspector of Police, City Crime Branch, (Coimbatore), the said law has been discussed and held that the final report filed by the police in respect of Section 188 of I.P.C. Is not maintainable. Hence, the lower court ought not to have taken cognizance of the charge sheet filed by the respondent police.?
e. M.Balaji .Vs. The Pricnipal Home Secretary, Government of Tamil Nadu, Secretariat, Chennai & Others in W.P.No.17768 of 2017, dated 09.04.2018 [Madras High Court] ?This writ petition, by way of public interest litigation, has been filed by a practising advocate of this Court seeking a writ of mandamus or an analogous order directing the respondents to ensure that
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR no first information report or charge sheet or final report is registered under Sections 172 to 188 of the Indian Penal Code.
3. Under Section 195 of the Criminal Procedure Code, no Court is to take cognizance of an offence punishable under Section 172 to 188 of the Indian Penal Code or of any abetment of, or attempt to commit such offences punishable under those sections, or 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.
4. If any Court takes cognizance of an offence in breach of Section 195 of the Criminal Procedure Code, the accused has an efficacious alternative remedy of filing a criminal revisional application for quashing of proceedings.
12. We would request the Tamil Nadu State Judicial Academy to initiate appropriate training programmes for the Magistrates in relation to offences under Sections 172 to 188 of the Indian Penal Code.
f) V.Gowthaman & Others .Vs. State, rep.by its Inspector of Police, St.Thomas Mount Police Station Chennai reported in [2018 (4) CTC 252].
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14. Though the learned counsel for the accused had failed to argue a particular legal aspect which is favourable to him, this Court does not want to take advantage of his ignorance. A Court cannot take cognizance of an offence under Section 188 IPC on a police report filed under Section 173(2) Cr.P.C., but only on the complaint by a concerned public servant in the light of Section 195 Cr.P.C. (See: C.Muniappan and others vs. State of Tamil Nadu [(2010) 9 SCC 567]. Thus, the prosecution of the accused under Section 188 IPC stands quashed?.
19. From the above judgments, it is clear that in order to prosecute an accused for an offence punishable under Section 188 of IPC, it is mandatory to follow the procedure prescribed under Section 195 of the Code, else, such action is rendered void ab initio. The object of the provision is to provide for a particular procedure, which gives authority only to the public servant. The legislative intent is to prevent an individual or a group of persons from facing criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill will, or frivolity of disposition and to save the time of Criminal Courts from being vexed by endless prosecution. Section 195 of Cr.P.C is an expansion to the general rule contained under Section 190 of Cr.P.C, wherein, any person can set the law in motion by making a complaint.
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20. Therefore, it is very clear from the above judgments that there must be a complaint by a public servant, who is lawfully empowered, whose lawful order has not been complied with. The provisions of Section 195 of Cr.P.C are mandatory and non-compliance, with it, will make the entire process void ab initio, being without jurisdiction.
21.The submission of the learned Additional Public Prosecutor to the effect that Section 188 of IPC is a cognizable offence, and therefore, the Police Officer is entitled to proceed under Section 154, 156 and 157 of Cr.P.C, is not sustainable. The offence being cognizable by itself, does not enable the Police Officer to register an FIR for an offence under Section 188 of IPC. The reason being, such registration of an FIR has to necessarily end with a Police Report under Section 173(2) of Cr.P.C, which is specifically barred under Section 195 of Cr.P.C. The definition of a complaint under Section 2(d) of Cr.P.C itself makes it clear that a complaint does not include a Police Report. The Hon'ble Supreme Court has gone to the extent of saying that such a Final Report, which is taken cognizance will make the entire proceedings void ab initio which would necessarily mean that the registration of the FIR for an offence under Section 188 of IPC will also become void.
22.There is one more analogy, which can be used here. Section 195(1)(b) of Cr.P.C prohibits any complaint for an offence that is committed during Court proceedings. Such offence committed during Court proceedings like
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR forgery, impersonation, perjury etc., by itself may be cognizable in nature, but that does not empower the Police Officer to register an FIR and complaint in such cases can be given only by the Court concerned. Therefore, the nature of the offence does not give a right to the Police Officer to register an FIR and investigate and file a Final Report, when those offences fall within the category enumerated under Section 195 of Cr.P.C. Therefore, the arguments of the learned Additional Public Prosecutor in this regard is not sustainable.
23.The next argument of the learned Additional Public Prosecutor to the effect that since a Police Officer is also a public servant under Section 21 of IPC, his Final Report filed before the Court under Section 173(2) of Cr.P.C must be construed as a complaint under Section 195(1)(a)(i), is also not sustainable. The word used under Section 188 of IPC is "public servant lawfully empowered" and the word used in Section 195(1)(a)(i) is "public servant concerned". The very terminology that has been used in the provision makes it clear that not all public servants falling under Section 21 of IPC can give a complaint in writing, it is only the public servant who has been specifically authorised, by a specific order in this regard, who can file a written complaint before the concerned Judicial Magistrate Court.
24.It is true that a Police Officer by virtue of the power given under Section 41 of Cr.P.C., will have the authority to arrest a person, without any warrant or order from a Magistrate, when a cognizable offence is committed in
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR his presence or in order to prevent the committing of a cognizable offence. This power by itself will not vest the Police Officer to register an FIR for an offence under Section 188 of IPC. After the arrest, the concerned Police Officer is duty bound to inform the public servant authorised about the offence committed under Section 188 of IPC and the public servant thereafter, has to proceed in accordance with the procedure under Section 195(1)(a)(i) of Cr.P.C. In other words, the power of the Police Officer to arrest a person committing a cognizable offence, is only a preventive action and thereafter the procedure to be followed is guided by Section 195(1)(a)(i) of Cr.P.C.
25.The last submission made by the learned Additional Public Prosecutor to the effect that, where other offences are also committed along with the offence under Section 188 of IPC, the authority of the Police Officer to register an FIR and to investigate and file a Final Report for the other offences, is in no way affected, is perfectly correct. The judgments cited by the learned Additional Public Prosecutor in this regard, supports the submission made by the learned Additional Public Prosecutor and this Court is in agreement with the said submission.
26.In some of the cases, it is also seen that the same Officer has registered the FIR, conducted the investigation and also filed the Final Report. Such a procedure goes against the very fundamental principle of fair investigation, wherein, the informant and the investigator must not be the same person. Such a
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR procedure, in fact is violative of Article 21 of the Constitution.
27.It will be useful to refer to the latest judgment of Hon'ble Supreme Court in this regard in Mohan Lal .Vs. The State of Punjab, in Crl.A.No.1880 of 2011 dt.16.08.2018, Hon'ble Supreme Court of India.
5. We have considered the submissions on behalf of the parties. The primary question for our consideration in the present appeal is, whether in a criminal prosecution, it will be in consonance with the principles of justice, fair play and a fair investigation, if the informant and the investigating officer were to be the same person. In such a case, is it necessary for the accused to demonstrate prejudice, especially under laws such as NDPS Act, carrying a reverse burden of proof.
11. A fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution, would be a hollow promise if the investigation in a NDPS case were not to be fair or raises serious questions about its fairness apparent on the face of the investigation. In the nature of the reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstances that may raise doubts about its veracity. The obligation of proof beyond reasonable doubt will take within its ambit a fair
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR investigation, in absence of which there can be no fair trial. If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided.
12. That investigation in a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on part of the accused was noticed in Babubhai vs. State of Gujarat, (2010) 12 SCC 254 as follows:
32. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer ?is not merely to bolster up a prosecution case with such
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR evidence as may enable the court to record a conviction but to bring out the real unvarnished truth?.
33. In State of Bihar v. P.P. Sharma this Court has held as under:
57. Investigation is a delicate painstaking and dextrous process. Ethical conduct is absolutely essential for investigative professionalism. ?
Therefore, before countenancing such allegations of mala fides or bias it is salutary and an onerous duty and responsibility of the court, not only to insist upon making specific and definite allegations of personal animosity against the investigating officer at the start of the investigation but also must insist to establish and prove them from the facts and circumstances to the satisfaction of the court.
59. Malice in law could be inferred from doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose of the exercise of statutory power. ?
61. An investigating officer who is not sensitive to the constitutional mandates, may be prone to trample upon the personal liberty of a person when he is actuated by mala fides.?
14. In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion.
25. In view of the conflicting opinions expressed by different two Judge Benches of this Court, the importance of a fair investigation from the point of view of an accused as a guaranteed constitutional right under Article 21 of the Constitution of India, it is considered necessary that the law in this regard be laid down with certainty. To leave the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of powers, but more importantly will leave the police, the
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR accused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person.
Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.
26.Resultantly, the appeal succeeds and is allowed. The prosecution is held to be vitiated because of the infraction of the constitutional guarantee of a fair investigation. The appellant is directed to be set at liberty forthwith unless wanted in any other case?.
28.There are certain cases covered in this batch, which apart from the infraction of the procedural mandate under Section 195(1)(a)(i) of Cr.P.C is also vitiated by the fact that the informant and the investigator are the same persons and hence, hit by the latest judgment of the Hon'ble Supreme Court referred supra.
29.In view of the discussions, the following guidelines are issued insofar as an offence under Section 188 of IPC, is concerned:
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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;
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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
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR 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.
30. This Court will now proceed to deal with the independent cases Crl.O.P.(MD).Nos. 11834, 15529, 15644, 15621, 16244, 16208, 16075 of 2018
31. In all these cases, it is seen that a Final Report has been filed for an Offence under Section 188 and 143 of IPC and cognizance has also been taken by the concerned Judicial Magistrates. In view of the above discussion, the cognizance of the Final Report under Section 188 of IPC is liable to be quashed. Insofar as the offence under Section 143 of IPC is concerned, in all the cases, the concerned Police Officer has quoted Section 30(2) of the Police Act, and therefore, has
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR straight away proceeded to register an FIR under Section 143 of IPC. As stated above, a mere violation of the so-called promulgation under Section 30(2) of the Police Act will not make out an offence under Section 143 of IPC by straight away declaring an assembly of persons to be an unlawful assembly. The power under Section 30(2) of the Police Act is merely regulatory in nature. In fact, Section 32 of the Police Act itself provides for a penalty for disobeying an order issued under Section 30(2) of the Police Act with a punishment of a fine not exceeding 200 rupees. Where as an offence under Section 143 of IPC is punishable with imprisonment for a term which may extend to 6 months. Therefore, a violation of the so-called promulgation under Section 30(2) of the Police Act will not by itself constitute an offence under Section 143 of IPC. In all the cases, the assembly of persons were made to express dissatisfaction of the governance and claiming for minimum rights that are guaranteed to a ordinary citizen. If such an assembly of persons are to be trifled by registering an FIR under Section 143 of IPC and filing a Final Report for the very same offence, no democratic dissent can ever be shown by the citizens and such prohibition will amount to violation of fundamental rights guaranteed under the Constitution.
32.Therefore, the Final Report for an offence under Section 143 of IPC is hereby quashed. Accordingly, all the Criminal Original petitions are allowed, and the Final Report filed in each of the case is hereby quashed.
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR Crl.O.P.(MD)Nos.1356,14873,14785 and 15866 of 2018
33. In all these cases, it is seen that a Final Report has been filed for an Offence under Section 188 and 143 of IPC and cognizance has also been taken by the concerned Judicial Magistrates. In view of the above discussion, the cognizance of the Final Report under Section 188 of IPC is liable to be quashed. Insofar as the offence under Section 143 of IPC is concerned, in all the cases, the concerned Police Officer has quoted Section 30(2) of the Police Act, and therefore, has straight away proceeded to register an FIR under Section 143 of IPC. As stated above, a mere violation of the so called promulgation under Section 30(2) of the Police Act will not make out an offence under Section 143 of IPC by straight away declaring an assembly of persons to be an unlawful assembly. The power under Section 30(2) of the Police Act is merely regulatory in nature. In fact, Section 32 of the Police Act itself provides for a penalty for disobeying an order issued under Section 30(2) of the Police Act with a punishment of a fine not exceeding 200 rupees. Where as an offence under Section 143 of IPC is punishable with imprisonment for a term which may extend to 6 months. Therefore, a violation of the so called promulgation under Section 30(2) of the Police Act will not by itself constitute an offence under Section 143 of IPC. In all the cases, the assembly of persons were made to express dissatisfaction of the governance and
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR claiming for minimum rights that are guaranteed to a ordinary citizen. If such an assembly of persons are to be trifled by registering an FIR under Section 143 of IPC and filing a Final Report for the very same offence, no democratic dissent can ever be shown by the citizens and such prohibition will amount to violation of fundamental rights guaranteed under the Constitution.
34.In these cases, the informant and the investigator are one and the same person. Therefore, there was no fair investigation in these cases. This issue is covered by the judgment of the Hon'ble Supreme Court in Mohanlal .Vs. The State of Punjab in Crl.A.No.1880 of 2011 referred supra. Therefore, the Final Report for an offence under Section 143 of IPC is hereby quashed. Accordingly, the Criminal Original petitions are allowed, and the Final Report filed in each of the case is hereby quashed.
Crl.O.P.(MD)No.11836 of 2018:-
35.In this case, the Final Report has been filed only for an offence under Section 143 of Cr.P.C and the Court below has taken cognizance of the Final Report. A reading of the allegations made in the Final Report would show that a group of persons were agitating for non supply of the essential commodities in a ration shop. In this case, the FIR was registered under Section 143 and 188 of IPC. The Final Report was filed for an offence under Section 143 of IPC. Insofar as the offence under Section 143 of IPC is concerned, the concerned
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR Police Officer has quoted Section 30(2) of the Police Act, and therefore, has straight away proceeded to register an FIR under Section 143 of IPC. As stated above, a mere violation of the so-called promulgation under Section 30(2) of the Police Act will not make out an offence under Section 143 of IPC by straight away declaring an assembly of persons to be an unlawful assembly. The power under Section 30(2) of the Police Act is merely regulatory in nature. In fact, Section 32 of the Police Act itself provides for a penalty for disobeying an order issued under Section 30(2) of the Police Act with a punishment of a fine not exceeding 200 rupees, where as an offence under Section 143 of IPC is punishable with imprisonment for a term which may extend to 6 months. Therefore, a violation of the so- called promulgation under Section 30(2) of the Police Act will not by itself constitute an offence under Section 143 of IPC. In this case, the assembly of persons were made to express dissatisfaction of the governance and claiming for minimum rights that are guaranteed to an ordinary citizen. If such an assembly of persons are to be trifled by registering an FIR under Section 143 of IPC and filing a Final Report for the very same offence, no democratic dissent can ever be shown by the citizens and such prohibition will amount to violation of fundamental rights guaranteed under the Constitution.
36.In this case, the informant and the investigator are one and the same person. Therefore, there was no fair investigation in this case. This is covered by the judgment of the Hon'ble Supreme Court in Mohanlal .Vs.
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR The State of Punjab in Crl.A.No.1880 of 2011 referred supra. Therefore, the Final Report for an offence under Section 143 of IPC is hereby quashed. Accordingly, the Criminal Original petition is allowed, and the Final Report filed is hereby quashed.
Crl.O.P.(MD)No.14846 of 2018
37.In this case, an FIR has been registered by the respondent Police for an offence under Section 188 of IPC and Section 4(1) of the Tamil Nadu Open Places [Prevention of Disfigurement] Act, 1959. The respondent Police do not have the authority to register an FIR for an offence under Section 188 of IPC. Therefore, the FIR has to be necessarily quashed insofar as offence under Section 188 of IPC is concerned. Insofar as 4(1) of the Tamil Nadu Open Places [Prevention of Disfigurement] Act, 1959 is concerned, the FIR is registered on the ground that the portrait of Swami Vivekananda was placed without permission. This offence is punishable with 3 months imprisonment and therefore, is a non cognizable offence. The respondent Police cannot register an FIR, without getting a specific order from the Magistrate under Section 155 of Cr.P.C. Therefore, the FIR is not sustainable. Accordingly, the FIR in Cr.No.4 of 2018 is hereby quashed and Crl.O.P.No.14846 of 2018 is allowed.
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38.In this case, the FIR has been registered for an offence under Section 143, 188 and Section 336 of IPC. An FIR cannot be registered for an offence under Section 188 of IPC. The complaint does not even state as to how the assembly formed by the persons is a unlawful assembly and does not satisfy the requirements of Section 143 of IPC. There is also no mention about any promulgation order passed under Section 30(2) of the Police Act, 1861. There are absolutely no averments in order to attract the offence under Section 336 of IPC.
39. There is no allegation that the accused persons engaged in an act so as to endanger human life or the personal safety of others. The complaint only says that the accused persons endangered their own lives by trying to get into the sea. Therefore, the FIR insofar as the offence under Section 336 is concerned is also hereby quashed. Accordingly, the FIR in Crime No.112/18 is hereby quashed and Criminal Original Petition is allowed.
Crl.O.P.(MD)No.15655 of 2018
40.In this case, an FIR has been registered as against 102 persons for an offence under Section 341,143 and 188 of IPC. A reading of the FIR does not make out an offence under Section 341 and 143 of IPC. No FIR can be registered by the respondent Police for an offence under Section 188 of IPC. Accordingly, the FIR in Crime
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR No.99 of 2018 is hereby quashed and Crl.O.P.No.15655/2018 stands allowed.
Crl.O.P.(MD)Nos. 12684, 15710 and 15709 of 2018
41.In all these cases, a Final Report has been filed for an offence under Section 143, 341 and 188 of IPC. A Final Report cannot be filed for an offence under Section 188 of IPC, and the Court below ought not to have been taken cognizance. In view of the above discussion, the Final Report insofar as an offence under Section 188 IPC is concerned is hereby quashed. Insofar as the offence under Section 143 IPC is concerned, the allegation is that the assembly had raised slogans demanding for the rights of the farmers, and expressed opposition not to establish a godown and this according to the Police was done, when there was a prohibitory order under Section 30(2) of the Police Act, 1861. In the considered view of this Court, this will not constitute an offence under Section 143 of IPC.
42.In all the cases, the assembly of persons were expressing dissatisfaction on the governance and claiming for minimum rights that are guaranteed to an ordinary citizen. If such an assembly of persons are to be trifled by registering an FIR under Section 143 of IPC and filing a Final Report for the very same offence, no democratic dissent can ever be shown by the citizens and such prohibition will amount to violation of fundamental rights guaranteed under the Constitution.
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR A reading of the Final Report also does not make out an offence under Section 341 of Cr.P.C since any form of an agitation, will necessarily cause some hindrance to the movement of the general public for sometime. That by itself, does not constitute an offence of a wrongful restraint.
43.In the considered view of this Court, the Final Report does not make out an offence of unlawful assembly or wrongful restraint. Accordingly, all the Criminal Original petitions are allowed, and the Final Report filed in each of the case is hereby quashed.
44.Consequently, connected Miscellaneous Petitions are closed.
45. This Court records its appreciation for the effective assistance given by the learned counsel appearing on behalf of the petitioners and also the learned Additional Public Prosecutor appearing for the State, to enable this Court to deal with an offence under Section 188 of IPC and give necessary guidelines with regard to the procedure to be followed.
9. In SRI.UMANATH A KOTIAN supra, this court held as under:
Heard Sri.M.R. Balakrishna, learned counsel appearing for the petitioner, Sri. Jagadeesha B.N., the learned Additional State Public Prosecutor, appearing for
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR respondent No.1 and Sri.Shreeraj S., appearing for respondent No.2.
2. The petitioner is before this Court calling in question the proceedings in C.C.No.528/2023, registered for offence punishable under Section 188 of the IPC.
3. The learned counsel for the petitioner would submit that the issue in the case at hand stands covered by the judgment rendered by this Court in Crl.P.No.10044/2022, disposed of on 11.08.2023, wherein this Court has held as follows:
" 3. The facts, in brief, are as follows:-The petitioners 1 to 7 are accused Nos.3 to 9
respectively. A complaint comes to be registered on 05-12-2019, alleging that at about 11.30 a.m., when the complainant was on election duty, accused No.2 and his associates formed an unlawful assembly and when he tried to disperse them, altercations broke out between accused No.2 and the Police. At that point in time, accused No.1 is alleged to have raised his voice and questioned the complainant as to how he can arrest him, thereby, obstructing the complainant in the discharge of his duties. This is the crux of the complaint that is made against all the accused. Based upon the said complaint, a crime comes to be registered in Crime No.271 of 2019 before Bilikere Police Station against accused Nos.1 and 2 primarily and 15 to 20 others named as accused for the offences punishable under Sections 143, 147, 353 and 149 of the IPC. The police conduct investigation and lay a charge sheet against 9
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR persons on 05-10-2021 for the offences under Sections 143, 147, 188, 353 and 149 of the IPC. The petitioners are accused Nos.3 to 9. The learned Magistrate takes cognizance of the offences on 16.06.2022. It is taking of cognizance that has driven the petitioners to this Court in the subject petition.
4. The learned counsel appearing for the petitioners Ms. Keerthana Nagaraj would vehemently contend that the very registration of the crime or taking of cognizance by the learned Magistrate for offence under Section 188 of the IPC is contrary to law. It is her submission that in order to prosecute an accused for an offence under Section 188 of the IPC, the procedure prescribed under Section 195 of the Cr.P.C. is to be followed mandatorily. That having not been done, the very act of taking cognizance would get vitiated. She would further contend that Section 188 of the IPC mandates that the complaint should be registered by the public servant lawfully empowered. It is an admitted fact that the complainant is not the authorized officer to register the complaint. She would contend that there is no specific overt act against the petitioners, in particular, to drive them into the web of crime.
5. Per contra, the learned Additional State Public Prosecutor would refute the submissions to contend that the Police have filed the charge sheet and the matter is set for further proceedings. The petitioners can as well seek discharge before the concerned Court and therefore, interference under Section 482 of the Cr.P.C. is unwarranted. He would seek dismissal of the petition.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
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7. The afore-narrated facts are not in dispute. The Police Officer i.e., the 2nd respondent is the complainant. The allegation against the petitioners on the incident, is as narrated hereinabove, which does not require reiteration. The crime is registered in Crime No.271 of 2019 for offences punishable under Sections 143, 147, 353 and 149 of the IPC. There was no offence registered under Section 188 of the IPC laid at the time of registration of crime. The Police file a charge sheet after investigation, after 22 months i.e., on 05.10.2021. Here the offence under Section 188 of the IPC is added. Whether Section 188 of the IPC can become an offence without it being registered by an authorized officer as that creates a bar under Section 195 of the Cr.P.C. is what is required to be considered. The consideration of which, need not detain this Court for long or delve deep into the matter. This Court in SHASHIKALA K.S. V. STATE OF KARNATAKA in Criminal Petition No.6812 of 2023 decided on 08.09.2023, has held as follows:
".... .... ....
2. The petitioner is before this Court calling in question the proceedings in C.C. No.7453/2013 registered by Subramanyanagar Police Station, Bengaluru City in Crime No.100/2013, dated 22.04.2013 for the offences punishable under Sections 171B, 171E & 188 read with Section 34 of the IPC.
3. Learned counsel appearing for the petitioner would submit that qua the other accused, this Court has already quashed the proceedings arising out of the very same crime. This Court in the case of Dr. C.N. Ashwathnarayan S/o. T.K. Narayanappa Vs. the State of Karnataka and another in Crl.P. No.9407/2017, disposed off on 24th April 2018, wherein it is held as under:
"Petitioner is seeking for quashing of the proceedings in C.C.No.7453/2013 pending on the file of VII Addl. Chief Metropolitan Magistrate, Bangalore, registered for the offence punishable under Sections 171(B), 171(E) and 188 r/w Section 34 of IPC on the basis of complaint lodged by second respondent herein. 2. The gist of prosecution case is; second respondent was on election duty in
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR Malleshwaram Constituency No.157 as MCC Flying Squad-Executive Magistrate and while discharging his duties on 21.04.2014, he received information that accused No.1, who is a yoga guru, had arranged a meeting at Kranthiveera Sangollirayann Park falling within the jurisdiction of Subramanya Nagar Police Station and a meeting was being held under the leadership of said yoga guru and in that meeting, petitioner, who was a candidate at Malleshwaram Vidhana Sabha Constituency along with local CorporatorSmt.Shashikala Krishnegowda was participating in the said meeting held by yoga guru Sri.Subhash and after the meeting, breakfast had been arranged without obtaining permission from the Election Officer and on reaching the venue, he found such meeting being held. Hence, alleging that accused had violated election rules, a complaint came to be lodged, which was registered in Cr.No.100/2013 and after completion of investigation, charge sheet came to be filed against petitioner for the offences punishable under Sections 171(B), 171(E) and 188 r/w Section 34 of IPC. Hence, petitioner is before this Court calling in question the registration of same and praying for quashing of said proceedings. 3. Heard Sri.Shanthi Bhushan.H, learned counsel appearing for petitioner and Sri.Rachaiah, learned HCGP appearing for first respondent - State. Perused the records. 4. As could be seen from the case records, offences alleged against petitioner are punishable under Sections 171(B) and 171(E), which are cognizable offences and as such, prior to registration of FIR, jurisdictional police ought to have obtained permission from the jurisdictional magistrate, which is conspicuously absent in the instant case. Insofar as, offences punishable under Section 188 of IPC, the bar contained in Section 195 of Cr.P.C. would come into play namely, prosecution can be initiated for said offence only by a competent officer by filing a complaint before the Court as otherwise the Court before whom proceedings is continued on the basis of police report, would not be empowered to take cognizance of said offence.
5. In the instant case, prosecution has been initiated for the offence committed under Section 188 of IPC on the basis of a police
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR report and not on the basis of complaint lodged in writing by the competent officer, who is empowered to do so. In that view of the matter, proceedings initiated against petitioner if allowed to be continued and is directed to undergo the ordeal of trial, it would be an abuse of process of law."
4. Insofar as the other accused is concerned, the Co-ordinate Bench of this Court has quashed the proceedings in the case of Subhash Vs. the State of Karanataka and another in Crl.P. No.9234/2017, disposed off on 22nd June 2018, wherein it is held as under:
"2. Petitioner is arrayed as accused no.2 in C.C.No.7453/2013 pending on the file of VII Addl. CMM Court, Bangalore registered for the offences punishable under Sections 171(B), 171(E), 188 read with Section 34 IPC on the basis of the final report submitted by the 2nd respondent under Section 173 Cr.P.C. 3. This Court had an occasion to deal with the same matter so far as accused no.1 is concerned. Ultimately, after a reasoned order, this Court has quashed the proceedings against accused no.1. The same has to be made applicable so far as this petitioner is concerned. 4. This Court has categorically observed that under Sections 171B and 171E they are non-cognizable offences and so far as offence under Section 188 IPC the Police have no jurisdiction to investigate in view of the bar contained in Section 195 Cr.P.C. Therefore, considering the said legal lacunae in the case, the Court has quashed the proceedings against accused no.1. Under the above said circumstances, the same order holds good so far as the petitioner is concerned."
5. In the light of the aforesaid orders answering the issue that is called in question in the case at hand, the further consideration or deeper dwelling in the matter would become unnecessary."
It is also germane to notice the judgment of the High Court of Madras in the case of JEEVANANDHAM v.
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR STATE reported in 2018 SCC OnLine Mad 13698, wherein it is held as follows:-
"19. From the above judgments, it is clear that in order to prosecute an accused for an offence punishable under Section 188 of IPC, it is mandatory to follow the procedure prescribed under Section 195 of the Code, else, such action is rendered void ab initio. The object of the provision is to provide for a particular procedure, which gives authority only to the public servant. The legislative intent is to prevent an individual or a group of persons from facing criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill will, or frivolity of disposition and to save the time of Criminal Courts from being vexed by endless prosecution. Section 195 of Cr.P.C. is an expansion to the general rule contained under Section 190 of Cr.P.C, wherein, any person can set the law in motion by making a complaint.
20. Therefore, it is very clear from the above judgments that there must be a complaint by a public servant, who is lawfully empowered, whose lawful order has not been complied with. The provisions of Section 195 of Cr.P.C. are mandatory and non- compliance, with it, will make the entire process void ab initio, being without jurisdiction.
21. The submission of the learned Additional Public Prosecutor to the effect that Section 188 of IPC is a cognizable offence, and therefore, the Police Officer is entitled to proceed under Section 154, 156 and 157 of Cr.P.C, is not sustainable. The offence being cognizable by itself, does not enable the Police Officer to register an FIR for an offence under Section 188 of IPC. The reason being, such registration of an FIR has to necessarily end with a Police Report under Section 173(2) of Cr.P.C, which is specifically barred under Section 195 of Cr.P.C. The definition of a complaint under Section 2(d) of Cr.P.C. itself makes it clear that a complaint does not include a Police Report. The Hon'ble Supreme Court has gone to the extent of saying that such a Final Report, which is taken cognizance will make the entire proceedings void ab initio which would necessarily mean that the registration of the FIR for an offence under Section 188 of IPC will also become void.
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22. There is one more analogy, which can be used here. Section 195(1)(b) of Cr.P.C. prohibits any complaint for an offence that is committed during Court proceedings. Such offence committed during Court proceedings like forgery, impersonation, perjury etc., by itself may be cognizable in nature, but that does not empower the Police Officer to register an FIR and complaint in such cases can be given only by the Court concerned. Therefore, the nature of the offence does not give a right to the Police Officer to register an FIR and investigate and file a Final Report, when those offences fall within the category enumerated under Section 195 of Cr.P.C. Therefore, the arguments of the learned Additional Public Prosecutor in this regard is not sustainable.
23. The next argument of the learned Additional Public Prosecutor to the effect that since a Police Officer is also a public servant under Section 21 of IPC, his Final Report filed before the Court under Section 173(2) of Cr.P.C. must be construed as a complaint under Section 195(1)(a)(i), is also not sustainable. The word used under Section 188 of IPC is "public servant lawfully empowered" and the word used in Section 195(l)(a)(i) is "public servant concerned". The very terminology that has been used in the provision makes it clear that not all public servants falling under Section 21 of IPC can give a complaint in writing, it is only the public servant who has been specifically authorised, by a specific order in this regard, who can file a written complaint before the concerned Judicial Magistrate Court.
24. It is true that a Police Officer by virtue of the power given under Section 41 of Cr.P.C, will have the authority to arrest a person, without any warrant or order from a Magistrate, when a cognizable offence is committed in his presence or in order to prevent the committing of a cognizable offence. This power by itself will not vest the Police Officer to register an FIR for an offence under Section 188 of IPC. After the arrest, the concerned Police Officer is duty bound to inform the public servant authorised about the offence committed under Section 188 of IPC and the public servant thereafter, has to proceed in accordance with the procedure under Section 195(l)(a)(i) of Cr.P.C. In other words, the power of the Police Officer to arrest a person committing a cognizable offence, is only a preventive action and thereafter the procedure to be followed is guided by Section 195(l)(a)(i) of Cr.P.C.
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... ... ...
29. 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 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;
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(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(l)(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."
The High Court of Madras has clearly laid down the guidelines when offence under Section 188 of the IPC is to be alleged. Therefore, the very act of bringing the act as an offence punishable under Section 188 of the IPC in the teeth of the bar under Section 195 of the Cr.P.C. would vitiate the entire proceedings. If further
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR proceedings are permitted to continue in the teeth of the aforesaid facts, where no overt act is even alleged against the petitioners, even in the charge sheet, it would run foul of the judgment of the Apex Court in the case of STATE OF HARYANA v. BHAJAN LAL reported in 1992 Supp (1) SCC 335, wherein it is held as follows:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) 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.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR 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.
(3) 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 case against the accused.
(4) 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
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR of a Magistrate as contemplated under Section 155(2) of the Code.
(5) 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.
(6) 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.
(7) 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."
(Emphasis supplied)
8. For the aforesaid reasons, I pass the following:
ORDER
(i) The Criminal petition is allowed.
(ii) Proceedings in C.C.No.3441 of 2022 pending before the XLII Additional Chief Metropolitan Magistrate (Special Court for MP/MLAs'), Bengaluru concerning Crime No.271 of 2019 of Bilikere Police Station stands quashed, only against accused Nos.3 to 9.
(iii) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of the petitioners under Section 482 of Cr.P.C. and the same shall not bind or influence the proceedings against other
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR accused pending before the concerned Court."
4. In the light of the order passed by this Court (supra) and for the reasons aforementioned, the following:
ORDER
(i) The Criminal Petition is allowed.
(ii) The proceedings in C.C.No.528/2023 pending on the file of the Hon'ble Civil Judge and J.M.F.C., Moodabidri, qua the petitioner, stand quashed.
10. As stated supra, in the absence of any private complaint by the competent authority as envisaged under Section 188 read with Section 195 of the Code of Criminal Procedure, 1973, the impugned FIR qua the petitioner in relation to the offences punishable under Section 188 deserves to be quashed.
11. It is also pertinent to note that though Section 188 is a cognizable offence, in view of the finding recorded herein before, the other offences referred to supra are not attracted to the facts of the instant case, the question of continuing the
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NC: 2025:KHC:25485 CRL.P No. 508 of 2025 HC-KAR impugned proceedings qua Section 188 also would not arise in the facts and circumstances of the instant case.
7. In the result, I pass the following:
ORDER
(i) Petition is hereby allowed.
(ii) The impugned FIR is hereby quashed. Liberty is reserved in favour of the respondents to initiate appropriate action against the petitioner for offences punishable under Section 188 of IPC as well as the provisions of Licensing And Regulation Of Protest Demonstration And Protest Marches, (Bengaluru City) Order, 2021 subject to all that exceptions and in accordance with law.
(iii) Liberty is reserved in favour of the respondent
-prosecution to take appropriate action in accordance with law for offences punishable under Section 188 of IPC read with Section 195 of Cr.P.C subject to all just exceptions and in accordance with law.
Sd/-
(S.R.KRISHNA KUMAR) JUDGE SS List No.: 1 Sl No.: 7