Madras High Court
Abdul Wahab vs State Rep. By The on 22 October, 2021
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
CRL.O.P.(MD)No.16032 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.10.2021
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.O.P.(MD)No.16032 of 2021
and
CRL.M.P.(MD)No.8592 of 2021
1.Abdul Wahab
2.A.L.S.Lakshmanan ...Petitioners
Versus
1.State rep. by the
The Inspector of Police
Palayamkottai Police Station
Tirunelveli City,
Tirunelveli
(Crime No.1343 of 2020)
2.P.Muthumari
Sub Inspector of Police,
Palayamkottai Police Station
Palayamkottai,
Tirunelveli ...Respondents
PRAYER: Criminal Original Petition filed under Section 482 of the
Code of Criminal Procedure, to call for the records pertaining to the
impugned FIR in Crime No.1343 of 2020 on the file of the
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CRL.O.P.(MD)No.16032 of 2021
Palayamkottai Police Station, Tirunelveli City, Tirunelveli District
and quash the same against these petitioners.
For Petitioners : Mr.S.Ramsundarvijayraj
For Respondents : Mr.Hasan Mohamed Jinnah
State Public Prosecutor
assisted by
Mr.A.Damodaran for R1
Additional Public Prosecutor
ORDER
This Criminal Original Petition has been filed to quash the proceedings in FIR in Crime No.1343 of 2020 on the file of the Palayamkottai Police Station, Tirunelveli City, Tirunelveli District as against the petitioners.
2. The case of the prosecution is that on 17.09.2020, when lock down was in force due to Corono Pandemic, the petitioners, who are political persons, without any permission and without any social distancing welcomed made a garland to the staute of Periyar. Hence a case has been registered against the petitioners Page No.2 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.(MD)No.16032 of 2021 and others in Crime No.1343 of 2020 for the offences under Sections 188 and 269 of IPC and 3 of Epidemic Disease Act, 1897.
3. The learned counsel appearing for the petitioners submitted that in order to register a case under Section 269 of IPC, the accused person must do any unlawful or negligent act, which likely to spread the infection of any disease dangerous to life and whereas in the present case, the petitioners were not tested positive and there is no reason to believe that they are likely to spread the infection. He 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, are constitutionally protected rights under Part III and their enjoyment can be restricted 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 Page No.3 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.(MD)No.16032 of 2021 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 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, 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 assembled in large numbers 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) Page No.4 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.(MD)No.16032 of 2021
(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. He further submitted that when Covid-19 Pandemic restriction was in force, the petitioners along with other people assembled in large numbers, which would certainly result in spreading of the Corona Virus. Therefore, he vehemently opposed the quash petition and prayed for dismissal of the same.
5. Heard the learned counsel for the petitioners and the learned Additional Public Prosecutor appearing for the respondent.
6. On perusal of the charge, it is seen that the petitioners along with other accused without prior permission from the concerned authority, garland the statue of Periyar. Therefore, the respondent police levelled the charges under Sections 188 and 269 of IPC and 3 of Epidemic Disease Act, 1897 as against the petitioners. Except the official witnesses, no one has spoken about Page No.5 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.(MD)No.16032 of 2021 the occurrence and no one was examined to substantiate the charges against the petitioner. 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 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 Page No.6 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.(MD)No.16032 of 2021 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 269, 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 shall take cognizance-
(a) (i) of any offence punishable under Page No.7 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.(MD)No.16032 of 2021 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. 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 Page No.8 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.(MD)No.16032 of 2021 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 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 Page No.9 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.(MD)No.16032 of 2021 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 Page No.10 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.(MD)No.16032 of 2021
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 Page No.11 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.(MD)No.16032 of 2021 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.
9. In the case on hand, the First Information Report has been registered by the respondent police for the offences under Sections 188 and 269 of IPC and 3 of Epidemic Disease Act, 1897.
Page No.12 of 16https://www.mhc.tn.gov.in/judis CRL.O.P.(MD)No.16032 of 2021 He is not a competent person to register FIR for the offences under Section 188 of IPC. As such, the First Information Report is liable to be quashed for the offences under Section 188 of IPC. Further, the petitioners are not tested positive for Covid-19 and they stated that they maintained social distance, hence, the offences under Section 269 of IPC and 3 of Epidemic Disease Act, 1897 are also liabled to be quashed. Therefore, the case cannot be sustained and it is liable to be quashed.
Page No.13 of 16https://www.mhc.tn.gov.in/judis CRL.O.P.(MD)No.16032 of 2021 M.NIRMAL KUMAR, J.
dna
10. Accordingly, the proceedings in proceedings in FIR in Crime No.1343 of 2020 on the file of the Palayamkottai Police Station, Tirunelveli City, Tirunelveli District, is quashed as against the petitioners and the Criminal Original Petition is allowed.
Consequently, connected Miscellaneous Petition is closed.
22.10.2021 (1/3) Index: Yes/No Internet: Yes/No dna Page No.14 of 16 https://www.mhc.tn.gov.in/judis CRL.O.P.(MD)No.16032 of 2021 To
1.The Inspector of Police Palayamkottai Police Station Tirunelveli City, Tirunelveli.
2.The Public Prosecutor, High Court, Madras.
Page No.15 of 16https://www.mhc.tn.gov.in/judis CRL.O.P.(MD)No.16032 of 2021 M.NIRMAL KUMAR, J.
dna CRL.O.P.(MD)No.16032 of 2021 and CRL.M.P.(MD)No.8592 of 2021 (1/3) 22.10.2021 Page No.16 of 16 https://www.mhc.tn.gov.in/judis