Madras High Court
Durai Boy @ Syed Yusub vs The Inspector Of Police on 12 September, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
CRL.O.P.No.21823 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.09.2022
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P.No.21823 of 2022
1.Durai Boy @ Syed Yusub
2.Ravikumar
3.Sethupathi
4.Selvaraj ... Petitioners
Vs.
The Inspector of Police,
Pollachi Bazzar Police Station,
Coimbatore District.
(Crime No.56/2017). ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
to call for the records and quash the proceedings S.T.C.No.1159 of 2018
pending on the file of the learned Judicial Magistrate Court No-II,
Pollachi.
For Petitioners : Mr.P.Muthamizhselvakumar
For Respondent : Mr.E.Raj Thilak
Additional Public Prosecutor
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CRL.O.P.No.21823 of 2022
ORDER
This Criminal Original Petition has been filed to quash the proceedings in S.T.C.No.1159 of 2018 on the file of the Judicial Magistrate Court No-II, Pollachi, thereby having been taken cognizance for the offences under Sections 143, 341 and 188 of I.P.C. as against the petitioner.
2. The case of the prosecution is that on 06.04.2017, the petitioners along with other accused staged protest towards functioning of the AC liquor bar and raised slogans against the functioning of the bar and demanded to close the liquor bar, without getting prior permission from the concerned authority. On the basis of the above said allegation, the respondent police registered the complaint and filed a charge sheet against the petitioners and others for the offences under Sections 143, 341 and 188 of IPC in S.T.C.No.1159 of 2018, on the file the Judicial Magistrate Court No-II, Pollachi.
3. The learned counsel appearing for the petitioners submitted Page 2 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.21823 of 2022 that the petitioners are social activists and they have been raising voice for the public cause and public welfare, whenever injustice and inaction of the government machineries. In order to draw the attention of the State Government, the petitioners along with several members had protested towards functioning of the AC liquor bar and raised slogans against the functioning of the bar and demanded to close the liquor bar. The learned counsel further submitted that the Hon'ble Supreme Court of India has held that the right to freely assemble and also right to freely express once view or constitutionally protected rights under Part III and their enjoyment can be only in proportional manner through a fair and non-
arbitrary procedure provided in Article 19 of Constitution of India. He further submitted that it is the duty of the Government to protect the rights of freedom of speech and assemble that is so essential to a democracy. 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 servant has written order from the authority. Further he submitted that the petitioners or any other members had never involved in any unlawful assembly and there is no evidence that the petitioners or others restrained Page 3 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.21823 of 2022 anybody. However, the officials of the respondent police had beaten the petitioners and others. When there was lot of members involved in the protest, the respondent police had registered this case, under Section 143, 341 and 188 of IPC as against the petitioners and others. Therefore, he sought for quashing the proceeding.
4. Per contra, the learned Additional Public Prosecutor submitted that the petitioners along with others staged protest 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 Section 188 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.
5. Heard Mr.P.Muthamizhselvakumar, learned counsel for the petitioners and Mr.E.Raj Thilak, learned Additional Public Prosecutor Page 4 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.21823 of 2022 appearing for the respondent.
6. On perusal of the charge, it is seen that the petitioners and others staged protest towards the functioning of the AC liquor bar, without getting prior permission from the concerned authority. Therefore the respondent police levelled the charges under Sections 143, 341 and 188 of I.P.C. as against the petitioners and others. 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 Page 5 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.21823 of 2022 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 143, 341 & 188 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-Page 6 of 16
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(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. It is to be noted that while exercising the power under Section 482, the Court should be slow, at the same time, if the Court finds that from the entire materials collected by the prosecution taken as a whole, would not constitute any offence, in such situation, directing the parties to undergo ordeal of trial will be a futile exercise and it will infringe the right of the persons and in this regard, the Apex Court in State of Page 7 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.21823 of 2022 Haryana and others Vs. Bhajan Lal and Others reported in 1992 Supp (1) Supreme Court Cases 335, has been held as follows :
“........
(a) 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;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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;
(c) 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;
(d) 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 of a Magistrate as contemplated under Section 155(2) of the Code;Page 8 of 16
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(e) 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;
(f) 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;
(g) 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.”
9. It is also relevant to note the definition of Unlawful Assembly:
“Unlawful Assembly-
An assembly of five or more persons is designated an ?unlawful assembly?, if the common object of the Page 9 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.21823 of 2022 persons composing that assembly is -
(i) 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
(ii) to resist the execution of any law, or of any legal process; or
(iii) to commit any mischief or criminal trespass, or other offence; or
(iv) 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
(v) 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.-
10. Only when the assembly fit into any of the above Page 10 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.21823 of 2022 circumstances, it could be construed as unlawful. The accused had not shown any criminal force to commit any mischief, crime or any offence or by way of criminal force or tried to take possession of the property or right to use of incorporeal right which is in possession of enjoyment of others or rights.
11. The learned counsel for the petitioners relied upon a judgement in Mahaboob Basha Vs. Sambanda Reddiar and others reported in 1994(1) Crimes, Page 477. He also relied upon a judgment in a batch of quash petitions, reported in 2018-2-L.W. (Crl.) 606 in Crl.O.P. (MD)No. 1356 of 2018, dated 20.09.2018 in the case of Jeevanandham and others Vs. State rep. by the Inspector of Police, Karur District, and this Court 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 Page 11 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.21823 of 2022 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 Page 12 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.21823 of 2022 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;
(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 Page 13 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.21823 of 2022 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(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.
12. In the case on hand, the First Information Report has been registered by the respondent police for the offences under Sections 143, 341 and 188 IPC. He is not a competent person to register FIR for the offences under Section 188 of IPC. As such, the First Information Report Page 14 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.21823 of 2022 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 protest formed by the petitioners and others is an unlawful protest and does not satisfy the requirements of Section 143 of IPC. Therefore, the final report cannot be sustained and it is liable to be quashed.
13. Accordingly, the proceedings in S.T.C.No.1159 of 2018 on the file of the learned Judicial Magistrate Court No-II, Pollachi, is quashed and the Criminal Original Petition is allowed.
12.09.2022
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
mpl
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CRL.O.P.No.21823 of 2022
G.K.ILANTHIRAIYAN, J.
mpl
To
1. The Judicial Magistrate Court No-II, Pollachi.
2.The Inspector of Police, Pollachi Bazzar Police Station, Coimbatore District.
3. The Public Prosecutor, High Court, Madras.
CRL.O.P.No.21823 of 202212.09.2022 Page 16 of 16 https://www.mhc.tn.gov.in/judis