Madras High Court
Subramaniya Thevar vs The Insepctor Of Police on 1 November, 2019
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.(MD)No.8242 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.11.2019
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.(MD)No.8242 of 2018
and
Crl.M.P.(MD)No.3705 of 2018
1. Subramaniya Thevar
2. Velladurai
3. Seetharaman
4. Shunmugavel
5. Kumar
6. Jameenthar@lakshmanan
7. Ramasamy
8. Gurunathan
9. Sankar ...Petitioners
-Vs-
1.The Insepctor of Police
Achanpudur Police Station,
Crime No. 41/2018
Tirunelveli District.
2.Sankaranarayanan ... Respondents
Prayer: Criminal Original petition filed under Section 482 of Code of
Criminal Procedure, to call for the records in Crime No. 41/2018, on
the file of the Achanpudur police station, Tirunelveli District and to
quash the same.
http://www.judis.nic.in
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Crl.O.P.(MD)No.8242 of 2018
For Petitioners : Mr.V.Kathirvelu, Senior Counsel
For R1 : Mr.K.Suyambulinga Bharathi
Government Advocate(crl.side)
For R2 : No appearance
ORDER
This Criminal Original petition has been filed to quash the FIR in in Crime No. 41 of 2018, on the file of the first respondent police.
2. The case of the prosecution is that on 31.01.2018 at about 6.00 p.m while the second respondent was on duty at Panmazli Nagreeswaramudayar temple festival all the accused persons used number of sound amplifier and speakers for the orchestra and also used crackers and they disturbed the public. On the basis of the above said allegations, the respondent police registered the complaint against the petitioners for the offences under Sections 188, 353, 286, 290, 291 of IPC and Section 3-A of the Tamil Nadu Town Nuisance Act, 1889 and Section 15(1) of the Environment Protection Act, 1986 in Crime No. 41 of 2018. The said F.I.R. is under challenge in this Criminal Original Petition.
3. According to the petitioners, the petitioners are innocent persons. According to Section 195(1)(a) of Cr.P.C., no Court can http://www.judis.nic.in 2/8 Crl.O.P.(MD)No.8242 of 2018 take cognizance of an offence under Section 188 of IPC, unless the public servant has written order from the authority. Further the learned counsel for the petitioners submitted that the petitioners or any other members had never disturbed public, public tranquility and peace and there is no evidence that the petitioners caused damages to the public property. The petitioners unaware about the order of the Commissioner of Police regarding banning the demonstration. On precautionary measures, the respondent police had registered this case, under Sections 188, 353, 286, 290, 291 of IPC and Section 3-A of the Tamil Nadu Town Nuisance Act, 1889 and Section 15(1) of the Environment Protection Act, 1986, as against the petitioners. Therefore, they sought for quashing the proceeding.
4. The learned Government Advocate(Crl.Side) submitted that the petitioners have attempted to nuisance before the Panmazli Nagreeswaramudayar Temple, while prohibitory order was in force and there are specific allegations as against the petitioners. Further, he would submit that Section 188 of IPC is a cognizable offence and therefore it is the duty of the police to register a case. Though there is a bar under Section 195(a)(i) of Cr.P.C. to take cognizance for the offence under Section 188 of IPC, it does not mean that the police cannot register FIR and investigate the case. Therefore, he http://www.judis.nic.in 3/8 Crl.O.P.(MD)No.8242 of 2018 vehemently opposed the quash petition and prayed for dismissal of the same.
5. Perused the material documents available on record.
6. On perusal of the F.I.R, it is seen that the petitioners have attempted to nuisance before the Panmazli Nagreeswaramudayat Temple, without any permission in prohibited area, while prohibitory order was in force. Therefore the respondent police levelled the offences under Sections 188, 353, 286, 290, 291 of IPC and Section 3-A of the Tamil Nadu Town Nuisance Act, 1889 and Section 15(1) of the Environment Protection Act, 1986 as against the petitioners. Except the official witnesses, no one has spoken about the occurrence and no one was examined to substantiate the charges against the petitioners. It is also seen from the charge itself that the charges are very simple in nature and trivial. Section 188 reads as follows:
“188. Disobedience to order duly promulgated by public servant — Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his http://www.judis.nic.in 4/8 Crl.O.P.(MD)No.8242 of 2018 management, disobeys such direction, shall, if such disobedience causes to tender to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
7. The only question for consideration is that whether the registration of case under Sections 188, 353, 286, 290, 291 of IPC and Section 3-A of the Tamil Nadu Town Nuisance Act, 1889 and Section 15(1) of the Environment Protection Act, 1986, registered by the respondent is permissible under law or not. In this regard it is relevant to extract Section 195(1)(a) of the Criminal Procedure Code, 1973 :-
“195.Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents http://www.judis.nic.in 5/8 Crl.O.P.(MD)No.8242 of 2018 given in evidence. (1) No Courts hall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive)of the Indian Penal Code (45 of 1860), or
(ii)of any abetment of, attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit, such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;...” Therefore, it is very clear that for taking cognizance of the offences under Section 188 of IPC, the public servant should lodge a complaint in writing and other than that no Court has power to take cognizance.
8. In the case on hand, the First Information Report has been registered by the respondent police for the offences under Sections 188, 353, 286, 290, 291 of IPC and Section 3-A of the Tamil Nadu Town Nuisance Act, 1889 and Section 15(1) of the Environment Protection Act, 1986. He is not a competent person to register FIR for the offences under Section 188 of IPC. As such, the First Information http://www.judis.nic.in 6/8 Crl.O.P.(MD)No.8242 of 2018 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 petitioners have attempted to nuisance in prohibited area and does not satisfy the requirements of Section 143 of IPC. Therefore, the first information report cannot be sustained and it is liable to be quashed.
9. Accordingly, the F.I.R, in Crime No.41 of 2018, on the file of the first respondent, is hereby quashed and this Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is closed.
01.11.2019 Internet: Yes/No Index : Yes/No Ls To
1.The Insepctor of Police Achanpudur Police Station, Tirunelveli District.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
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Ls Crl.O.P.(MD)No.8242 of 2018 01.11.2019 http://www.judis.nic.in 8/8