Madras High Court
R. Vilvanathan vs The Sub Inspector Of Police on 14 March, 2019
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.03.2019
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P.No. 6849 2019 and
CRL.M.P.Nos.3769 and 3771 of 2019
1. R. Vilvanathan
2. S.S. Murthy @ Periyar Murthy
3. R. Yuvaraj
4. G.Vennila ... Petitioners
Vs.
1.The Sub Inspector of Police,
F-1, Chintadripet Police Station,
Chennai - 600 002.
(Crime No.72 of 2018)
2.N. Prakash,
Sub Inspector of Police,
Chintadripet Police Station,
Chennai - 600 002. ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C., to call
for the records relating to the C.C.No.5230 of 2018 pending on the file of the
learned XIV Metropolitan Magistrate Egmore, in Crime No.72 of 2018 on the
file of the 1st respondent and quash the same.
For Petitioner : Mr. S.Kumaradevan
For Respondent : Mr.M.Mohamed Riyaz
Additional Public Prosecutor
****
http://www.judis.nic.in
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ORDER
This Criminal Original Petition has been filed to quash the proceedings in C.C.No.5230 of 2018, pending on the file of the learned XIV Metropolitan Magistrate Egmore, thereby having been taken cognizance for the offences under Sections Sections 143, 353 of IPC r/w Section 41 of Tamilnadu City Police Act, 1888 r/w Section 7(1) A of Criminal Law Amendment Act, 2005 as against the petitioners whereas, initially, the petitioners have been filed under Sections 143,188,353 of I.P.C in Crime No.72 of 2018 on the file of the The Sub Inspector of Police, F-1, Chintadripet Police Station.
2.The case of the prosecution is that on 20.03.2018, around 10.30 a.m., the petitioners/accused staged protest raising slogans as against the Central government and State Government near Periyar Statue on Anna Salai, which is under the jurisdiction of F1, Chindatripet Police Station, for having permitted to conduct Radha-Yatra from Kerala to Tamilnadu belonging to the party of Viswa Hindu Parishad, without getting prior permission from the concerned authority. On the basis of the above said allegation, the respondent police registered the complaint initially, under Sections 143,188,353 of I.P.C in Crime No.72 of 2018 and filed a charge sheet against http://www.judis.nic.in 3 the petitioners for the offences under Sections 143, 353 of IPC. r/w Section 41 of Tamilnadu City Police Act, 1888 r/w Section 7(1) A of Criminal Law Amendment Act, 2005 in C.C.No.5230 of 2018, on the file the learned Judicial Magistrate No.XIV Metropolitan Magistrate Egmore.
3.The learned counsel appearing for the petitioners submitted that in order to draw the attention of the Central and State Governments, the petitioners had protested against Radha-Yatra to be conducted by Vishwa Hindu Parishad Party from Kerala to Tamilnadu. 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. Further he submitted that the petitioners had never involved in any unlawful assembly and there is no evidence that the petitioners restrained anybody. However, the officials of the respondent police had beaten the petitioners. When there was lot of members involved in the protest, the respondent police had registered this case initially, under Sections 143, 188 and 353 of IPC in Crime No.72 of 2018 and the Charge sheet has http://www.judis.nic.in 4 been filed under Sections 143, 353 of IPC. r/w Section 41 of Tamilnadu City Police Act, 1888 r/w Section 7(1) A of Criminal Law Amendment Act, 2005 in C.C. No.5230 of 2018 as against the petitioners. Therefore, he sought for quashing the proceeding.
4.Per contra, the learned Additional Public Prosecutor submitted that the petitioners had staged protest and there are specific allegations as against the petitioners to proceed with the trial. Further, he would submit that the case was initially registered under Section 143, 188 and 353 of I.P.C in Crime No.72 of 2018. 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. Further, the charge sheet has been filed under Sections 143, 353 of I.P.C. r/w. Section 41 of Tamilnadu City Police Act, 1888 r/w. Section 7(1)A of Criminal Law amendment Act against the petitioners. More over, the petitioner are habitual offenders by committing this kind of crimes. Therefore, he vehemently opposed the quash petition and prayed for dismissal of the same.
5.Heard Mr.S. Kumaradevan, learned counsel for the petitioner and Mr.M.Mohamed Riyaz, learned Additional Public Prosecutor appearing for the 1st respondent.
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6.On perusal of the charges, it is seen that the petitioners staged protest against Radha-Yatra to be conducted by Vishwa Hindu Parishad Party from Kerala to Tamilnadu, without getting prior permission from the concerned authority. Therefore, the respondent police, initially, levelled the charges under Sections 143, 188 and 353 of I.P.C. in Crime No.72 of 2018 as against the petitioners and further the charge sheet has been filed under Sections 143, 353 of I.P.C. r/w. Section 41 of Tamilnadu City Police Act, 1888 r/w. Section 7(1)A of Criminal Law amendment Act. 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 in the First Information report 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 trends to cause danger http://www.judis.nic.in 6 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 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 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.
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8.The learned counsel for the petitioner relied upon a judgment 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 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 http://www.judis.nic.in 8 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 http://www.judis.nic.in 9 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 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 initially been registered by the respondent police for the offences under Sections 143, 188 and 353 IPC. in Crime No.72 of 2018. He is not a competent person to http://www.judis.nic.in 10 register FIR for the offences under Section 188 of IPC. As such, the First Information Report or the final report is liable to be quashed for the aforesaid offences. Further, the complaint does not even state as to how the protest formed by the petitioners is an unlawful protest and does not satisfy the requirements of Section 143 and 353 of IPC Therefore, the final report cannot be sustained and it is liable to be quashed.
10.Accordingly, the proceedings in C.C.No.5230 of 2018 on the file of the XIV Metropolitan Magistrate, Egmore in Crime No.72 of 2018 on the file of the Sub-Inspector of Police, F1, Chintadripet Police Station, is quashed and the Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is closed.
14.03.2019
lbm
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
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To:
1.The learned XIV Metropolitan Magistrate Egmore, Egmore.
2. The Sub Inspector of Police, F-1, Chintadripet Police Station, Chennai - 600 002.
3.The Public Prosecutor, High Court, Madras.
http://www.judis.nic.in 12 G.K.ILANTHIRAIYAN, J.
lbm CRL.O.P.No. 6849 2019 and CRL.M.P.Nos.3769 and 3771 of 2019 14.03.2019 http://www.judis.nic.in