Madras High Court
P.Kanthan vs The State Represented By on 28 April, 2022
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
Crl.O.P.No.9443 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.04.2022
CORAM
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.O.P.No.9443 of 2022
and Crl.M.P.Nos.5510 & 5513 of 2022
1. P.Kanthan
2. J.Mohanraj
3. A.Raman
4. R.Prakash
5. J.Venkatesan
6. M.Mohan
7. G.Sivamuthu
8. S.Desigan
9. C.Kesavan
10. A.Jayachandiran
11. R.Vadivel
12. S.Gowtham
13. A.Guru
14. R.Mannikkam
15. V.Saikumar
16. A.Perumal
17. K.Duraimurugan
18. A.Iyyappan
19. G.Thamizhanprabhu
20. M.Kumar
21. E.Balaji
22. Ameenmuhamed Ershanth
23. K.Vijayakumar
24. M.Sarlas
25. R.Dhanabal
26. R.Peragalatha ... Petitioners
https://www.mhc.tn.gov.in/judis
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Crl.O.P.No.9443 of 2022
Vs
1.The State Represented by
The Inspector of Police,
Thiruvannamalai Taluk Police Station,
Thiruvannamalai.
(Crime No.887 of 2018)
2. Jivitha ... Respondents
PRAYER: This Criminal Original Petition has been filed under Section 482 of
Criminal Procedure Code, to call for the entire records of the proceedings
pending on the file of the Hon'ble Judicial Magistrate-II at Thiruvannamalai in
C.C.No.201 of 2019 against the petitioners and quash the same.
For Petitioners : Mr.S.Xavier Felix
For Respondent1 : Mr.A.Gokulakrishnan
Additional Public Prosecutor
ORDER
This Criminal Original Petition has been filed seeking to call for the entire records of the proceedings pending on the file of the Judicial Magistrate- II at Thiruvannamalai in C.C.No.201 of 2019 against the petitioners and quash the same.
2. The case of the prosecution is that on 04.06.2018, at about 11.00 a.m., the petitioners/accused under the leadership of the North District https://www.mhc.tn.gov.in/judis 2/12 Crl.O.P.No.9443 of 2022 Secretary, Kanthan of Naam Thamilar Katchi, made an attempt to raise slogans at Pandu Hotel, Theebam Nagar, Thiruvannamalai to Vellore High Road, opposing the laying of 8 Lane Road between Salem to Chennai without any permission, thereby, causing hindrance to the traffic and public and also threatened to damage the vehicles of bus and car to damage the glasses. Based on the complaint given by the 2nd respondent, the first respondent police registered the complaint in Crime No. 887 of 2018 and filed a charge sheet against the petitioners for the offences under Sections 147, 188 of IPC and Section 7(1)(a) if Criminal Law Amendment Act and Section 341 of IPC in C.C.No.201 of 2019 on the file of the learned Judicial Magistrate-II at Thiruvannamalai. The said criminal proceedings is under challenge in this criminal original petition.
3. The learned counsel appearing for the petitioners would submit that the petitioners are innocent. 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 a written order from the authority. He would further submit that the petitioners had never involved in any unlawful assembly and there is no evidence that the petitioners restrained anybody. As there was lot of members https://www.mhc.tn.gov.in/judis 3/12 Crl.O.P.No.9443 of 2022 involved in the incident, the first respondent had registered the case under Sections 147, 188 of IPC and Section 7(1)(a) if Criminal Law Amendment Act and Section 341 of IPC, as against the petitioners. Therefore, he sought for quashing the proceedings.
4. Per contra, the learned Additional Public Prosecutor submitted that on 04.06.2018, at about 11.00 a.m., the petitioners/accused along with their party cadres under the leadership of the North District Secretary, Kanthan of Naam Thamilar Katchi, had gathered together and protested by raising slogans at Pandu Hotel, Theebam Nagar, Thiruvannamalai to Vellore High Road, opposing the laying of 8 Lane Road between Salem to Chennai without any permission, thereby, causing hindrance to the traffic and public and also threatened to damage the vehicles of bus and car to damage the glasses. He would further 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(1) (a) 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.
https://www.mhc.tn.gov.in/judis 4/12 Crl.O.P.No.9443 of 2022
5. Heard the learned counsel and perused the materials available on record.
6. On a perusal of the charge as against the petitioners are concerned, the first respondent levelled the charge under Sections 147, 188 of IPC and Section 7(1)(a) if Criminal Law Amendment Act and Section 341 of IPC., as against the petitioners. It is seen from the charge sheet that on 04.06.2018, at about 11.00 a.m., the petitioners/accused along with their party cadres under the leadership of the North District Secretary, Kanthan of Naam Thamilar Katchi, had gathered together and protested by raising slogans at Pandu Hotel, Theebam Nagar, Thiruvannamalai to Vellore High Road, opposing the laying of 8 Lane Road between Salem to Chennai without any permission, thereby, causing hindrance to the traffic and public and also threatened to damage the vehicles of bus and car to damage the glasses. Based on the complaint given by the second respondent, the first respondent police had registered the complaint and filed the charge sheet against the petitioners for the offences under Sections 147, 188 of IPC and Section 7(1)(a) if Criminal Law Amendment Act and Section 341 of IPC., It is also seen from the charge sheet itself that the charges https://www.mhc.tn.gov.in/judis 5/12 Crl.O.P.No.9443 of 2022 are very simple in nature and trivial.
7. Section 188 of IPC defines disobedience to order duly promulgated by public servant to spread infection as under:-
"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 or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons 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 tends 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."
8. The only question for consideration is that whether the registration https://www.mhc.tn.gov.in/judis 6/12 Crl.O.P.No.9443 of 2022 of case under Sections 147, 188 of IPC and Section 7(1)(a) if Criminal Law Amendment Act and Section 341 of IPC., registered by the first 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 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.
9. The learned counsel for the petitioners, in support of his https://www.mhc.tn.gov.in/judis 7/12 Crl.O.P.No.9443 of 2022 contentions, relied upon a judgement 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 represented by the Inspector of Police, Velayuthampalayam Police Station, 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 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 https://www.mhc.tn.gov.in/judis 8/12 Crl.O.P.No.9443 of 2022 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 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. https://www.mhc.tn.gov.in/judis 9/12 Crl.O.P.No.9443 of 2022
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 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."
10. The learned counsel for the petitioners also relied upon the similar facts of the case covered under recent Judgment of this Court in the case https://www.mhc.tn.gov.in/judis 10/12 Crl.O.P.No.9443 of 2022 of Sri Raja Vs Inspector of Police, Sivakasi Town Police Station Virudhunagar District and other in Crl.O.P(MD).No.7922 of 2019 etc batch dated 30.08.2019 reported in (2019) 4 MLJ (Crl) 175.
11. In the case on hand, the First Information Report has been registered by the first respondent for the offences under Sections 147, 188 of IPC and Section 7(1)(a) if Criminal Law Amendment Act and Section 341 of IPC. The first respondent 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 offences under Section 188 of IPC.
12. Accordingly, the proceedings in C.C..No.201 of 2019 on the file of the learned Judicial Magistrate-II, Thiruvannamalai is quashed and this Criminal Original Petition is allowed. Consequently, connected miscellaneous petitions are closed.
28.04.2022
rgi
Index : Yes/No
Internet : Yes/No
Speaking/Non-speaking order
https://www.mhc.tn.gov.in/judis
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Crl.O.P.No.9443 of 2022
A.D.JAGADISH CHANDIRA,J.
rgi
To
1. The Inspector of Police,
Thiruvannamalai Taluk Police Station,
Thiruvannamalai.
2.The Public Prosecutor,
High Court of Madras.
Crl.O.P.No.9443 of 2022
and Crl.M.P.Nos.5510 & 5513 of 2022
28.04.2022
https://www.mhc.tn.gov.in/judis
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