Madras High Court
Murugesan vs The Inspector Of Police on 1 November, 2018
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.11.2018
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P(MD)Nos.19804 and 19943 of 2018
and
CRL.M.P(MD)Nos.9063 and 9141 of 2018
1.Murugesan
2.Rajagopal
3.Tamilarasan
4.Ramesh
: Petitioners in Crl.O.P.(MD).No.19804 of 2018/
Accused Nos.1 to 4
1.Rajagopal
2.Tamilarasan
3.Ramesh
: Petitioners in Crl.O.P.(MD).No.19943 of 2018/
Accused Rank Not Known
Vs.
1.The Inspector of Police,
Sernthamaram Police Station,
Tirunelveli District.
(Cr.No.289 of 2013) : 1st Respondent in both Petitions
2.Muppudathi
: 2nd Respondent in Crl.O.P.(MD).No.19804 of 2018
2.Kumar
: 2nd Respondent in Crl.O.P.(MD).No.19943 of 2018
http://www.judis.nic.in
2
PRAYER in Crl.O.P.(MD).No.19804 of 2018: Criminal Original
Petition is filed under Section 482 of Cr.P.C., to call for the records
pertaining to the First Information Report in Crime No.290 of 2013,
on the file of the first respondent and quash the same against the
petitioners.
PRAYER in Crl.O.P.(MD).No.19943 of 2018: Criminal Original
Petition is filed under Section 482 of Cr.P.C., to call for the records
pertaining to the First Information Report in Crime No.289 of 2013,
on the file of the first respondent and quash the same against the
petitioners.
For Petitioners : Mr.K.Navneetharaja
(in both Petitions)
For R-1 : Mrs.S.Bharathi
(in both Petitions) Government Advocate (Crl. Side)
COMMON ORDER
Crl.O.P.(MD).No.19804 of 2018 has been filed to quash the First Information Report in Crime No.290 of 2013, on the file of the first respondent police, for the offences punishable under Sections 143, 147, 148, 353, 188, 153(A), 307 of IPC and Section 3(1) of TNPPDL Act and Section 7(1)(a) of CLA Act, as against the petitioners.
2.Crl.O.P.(MD).No.19943 of 2018 has been filed to quash the First Information Report in Crime No.289 of 2013, on the file of the http://www.judis.nic.in 3 first respondent police, for the offences punishable under Sections 143, 147, 148, 353, 153(A), 307 of IPC and Section 3(1) of TNPPDL Act and Section 7(1)(a) of CLA Act, as against the petitioners.
3. The case of the prosecution is that the first petitioner is an Advocate, 2nd petitioner is an Ex-Serviceman and other petitioners are actively participating in the Social Activities for the welfare of the Village people. While so, on 01.12.2013, two persons from Thannuthu Village went to supply water to the Church and later, they were found dead behind the Church in a suspected manner. Due to the same, the relatives of the deceased persons suspected the death of the deceased persons and conducted a road roko. Hence, a case has been registered against the petitioners.
4. The learned counsel for the petitioners would submit that the petitioners said to have unlawfully assembled and agitated against the order of the Superintendent of Police, Tirunelveli and therefore, by virtue of Section 195(1) of the Criminal Procedure Code, no Court can take cognizance of the offence punishable under Sections 172 to 188 of IPC, except on the complaint given by the public servant concerned. In the case on hand, the second respondent in both the petitions at the time of alleged occurrence had lodged a written complaint. Therefore, he has no locus or http://www.judis.nic.in 4 competence to lodge a complaint for the offence under Section 188 of IPC. Further, he would submit that the case of the prosecution is that the petitioners unlawfully assembled and agitated against the order promulgated by the Superintendent of Police, Tirunelveli. But, the Superintendent of Police, Tirunelveli, did not lodge any complaint and as such the complaint as in the entire proceedings as against the petitioners are liable to be quashed.
4. The learned Government Advocate (criminal side) appearing for the first respondent would submit that the petitioners, even after the knowledge of promulgation order, unlawfully assembled and involved in a road roko and protested against the Superintendent of Police, Tirunelveli, Therefore, they committed the offences under Sections 143, 147, 148, 353, 188, 153(A), 307 of IPC and Section 3(1) of TNPPDL Act and Section 7(1)(a) of CLA Act. Therefore, she sought for dismissal of the quash petitions.
5. Heard the respective counsels.
6. This Court has carefully considered the rival submissions made on either side.
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7. Admittedly, the second respondent in Crl.O.P.(MD).No. 19804 of 2018, is the Police Constable, Armed Reserve, Palayamkottai, Tirunelveli, and the Second respondent in Crl.O.P. (MD).No.19943 of 2018, is the private complainant, whereas the Promulgation Order was passed by the Superintendent of Police, Tirunelveli. He is not the complainant.
8. The only question for consideration is that whether the registration of case under Sections 143, 147, 148, 353, 188, 153(A), 307 of IPC and Section 3(1) of TNPPDL Act and Section 7(1)(a) of CLA Act, on the complaint lodged by the second respondent in both the petitions are permissible under law or not. In this regard it is relevant to extract Section 195(1)(a) of the Criminal Procedure Code, 1973 :-
“195.Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. (1) No 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)of any abetment of, attempt to http://www.judis.nic.in 6 commit, such offence, or
(iii) of any criminal conspiracy to commit, such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;...”
9. In view of the above, it is very clear that for taking cognizance of the offence under Section 188 of IPC, the public servant should lodge a complaint in writing and other than that no Court has power to take cognizance.
10. The learned counsel for the petitioners relied upon the judgement in Mahaboob Basha Vs. Sambanda Reddiar and others reported in 1994(1) Crimes, Page 477. In the above judgment cited by the learned counsel for the petitioners in a batch of quash petitions, this Court has held in Paragraph-25, as follows:-
...25.In view of the discussions, the following guidelines are issued insofar as an offence under Section 188 of IPC, is concerned;
a)A Police Officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC.
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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 stipulate3d 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 http://www.judis.nic.in 8 or to take certain order with certain property in his possession and under his management, has disobeyed; and
iv)that such disobedience causes or tends to cause;
(a)obstruction, annoyance or risk of it to any person lawfully employed; or
(b)danger to human life, health or safety; or
(c) a riot or affray.
e)The promulgation issued under Section 30(2) of the Police Act, 1861, must satisfy the test of reasonableness and can only be in the nature of a regulatory power and not a blanket power to trifle any democratic dissent of the citizens by the police.
f)The promulgation through which, the order is made known must be by something done openly and in public and private information will not be a promulgation. The order must be notified or published by beat of drum or in a Gazette or published in a newspaper with a wide circulation.
g)No Judicial Magistrate should take cognizance of a Final Report when it reflects an offence under Section 172 to 188 of IPC. An FIR or a final report will not become void ab initio http://www.judis.nic.in 9 insofar as offences other than Sections 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 of the various zones are directed to immediately formulate a process by specifically empowering public servants dealing with for an offence under Section 188 of IPC to ensure that there is no delay in filing a written complaint by the public servants concerned under Section 195(1)(a)(i) of Cr.P.C.
11. In the case on hand, the First Information Report has been registered by the first respondent police for the offences under Sections 143, 147, 148, 353, 188, 153(A), 307 of IPC and Section 3(1) of TNPPDL Act and Section 7(1)(a) of CLA Act. He is not a competent person to register an FIR for the offences under Section 188 of IPC. As such, the First Information Report or final report is liable to be quashed for the offences under Section 188 of IPC. Further, the complaint does not even state as to how the assembly formed by the persons is an unlawful assembly and does not satisfy the requirements of Section 143 of IPC. Therefore, the First Information Reports cannot be sustained and it is liable to be quashed.
http://www.judis.nic.in 10 G.K.ILANTHIRAIYAN, J.
sji
12. Accordingly, the First Information Reports in Crime Nos. 289 and 290 of 2013, on the file of the first respondent, are quashed and the Criminal Original Petitions are allowed. Consequently, connected miscellaneous petitions are closed.
01.11.2018 Index: Yes/No Internet: Yes/No sji To
1.The Inspector of Police, Sernthamaram Police Station, Tirunelveli District.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
CRL.O.P(MD)Nos.19804 and 19943 of 2018 and CRL.M.P(MD)Nos.9063 and 9141 of 2018 http://www.judis.nic.in