Madras High Court
Gunam @ Gunasekaran vs The Inspector Of Police on 21 November, 2019
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.(MD)No.17095 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.11.2019
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.(MD)No.17095 of 2019
1. Gunam @ Gunasekaran
2. Chandrasekar,
3. Rajesh
4. Pandiyarajan
5. Neelamalai Ayyanar ... Petitioners
-Vs-
1.The Inspector of Police
Virudhunagar West Police Station
Virudhunagar District
Cr.No.17 of 2018.
2.Muthupandi,
Sub Inspector of Police,
Virudhdunagar West Police Station
Virudhdunagar District. ... Respondents
Prayer: Criminal Original petition filed under Section 482 of Code of
Criminal Procedure, to call for the records in respect of the case in
S.T.C.No.2058 of 2019 on the file of the Judicial Magistrate Court
No.I, Virudhunagar.
For Petitioner : Mr.M.Jothi Basu
For R1 : Mr.K.Suyambulinga Bharathi
Government Advocate(crl.side)
http://www.judis.nic.in
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Crl.O.P.(MD)No.17095 of 2019
ORDER
This Criminal Original Petition has been filed to quash proceedings in S.T.C.No.2058 of 2019 on the file of the Judicial Magistrate No.I, Virudhunagar.
2. The case of the prosecution is that the the petitioners are Members of Puthiya Thamizhagam Political Party. On 06.01.2018 at about 11.25 a.m, the petitioners have conducted demonstration as against political leader Mr.Subramaniasamy and burnt his effigy without any prior permission from the police, the petitioners have attempted to stage demonstration in prohibited area, while prohibitory order was in force. On the basis of the above said allegations, the respondent police registered the complaint and filed a charge sheet against these petitioners for the offences under Sections 143, 188 and 285 of IPC in Crime No. 17 of 2018 the same was taken cognizance by the learned Judicial Magistrate No.I, Virudhunagar. The said criminal proceedings is under challenge in this Criminal Original Petition.
3. According to the petitioners, the petitioners are innocents. According to Section 195(1)(a) of Cr.P.C., no Court can take cognizance of an offence under Section 188 of IPC, unless the public http://www.judis.nic.in 2/8 Crl.O.P.(MD)No.17095 of 2019 servant has written order from the authority. Further he 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 143, 188 and 285 of IPC as against the petitioners. Therefore, they sought for quashing the proceeding.
4. The learned Government Advocate(Crl.Side) submitted that the the petitioners have conducted demonstration as against political leader Mr.Subramaniasamy and burnt his effigy without any permission in prohibited area, while prohibitory order was in force and there are specific allegations as against the petitioners to proceed with the trial. 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 Sections 143, 188 and 285 of IPC, it does not mean that the police cannot register FIR and investigate the case. Therefore, he vehemently opposed the quash petition and prayed for dismissal of the same. http://www.judis.nic.in 3/8 Crl.O.P.(MD)No.17095 of 2019
5. Perused the material documents available on record.
6. On perusal of the charge, it is seen that the petitioners have conducted demonstration as against political leader Mr.Subramaniasamy and burnt his effigy without any without any permission in prohibited area, while prohibitory order was in force. Therefore the respondent police levelled the charges under Sections 143, 188 and 285 of I.P.C. 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 management, disobeys such direction, shall, if such disobedience causes to tender to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or http://www.judis.nic.in 4/8 Crl.O.P.(MD)No.17095 of 2019 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 143, 188 and 285 IPC, registered by the respondent is permissible under law or not? In this regard it is relevant to extract Section 195(1)(a) of the Criminal Procedure Code, 1973 :-
“195.Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. (1) No Courts 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 http://www.judis.nic.in 5/8 Crl.O.P.(MD)No.17095 of 2019 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 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.
8. In the case on hand, the First Information Report has been registered by the respondent police for the offences under Sections 143, 188 and 285 IPC. He is not a competent person to register 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 offence under Section 188 of IPC. Further, the complaint does not even state as to how the petitioners have attempted to stage demonstration in prohibited area and does not satisfy the requirement of Section 143 and 285 of IPC. Therefore, the final report cannot be sustained and it is liable to be quashed. http://www.judis.nic.in 6/8 Crl.O.P.(MD)No.17095 of 2019
9.Accordingly, the proceedings in S.T.C. No.2058 of 2019 in Crime No.17 of 2018, is hereby quashed and this Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is closed.
21.11.2019 Ls To
1.The Judicial Magistrate No.I, Virudhunagar.
2.The Inspector of Police Virudhunagar West Police Station Virudhunagar District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
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Ls Crl.O.P.(MD)No.17095 of 2019 21.11.2019 http://www.judis.nic.in 8/8