Madras High Court
M.K.Sheik Uduman vs The State Of Tamilnadu on 28 March, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.21090 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.03.2025
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL OP(MD) NO.21090 of 2024
and Crl.M.P.(MD) Nos.13071 & 13072 of 2024
M.K.Sheik Uduman ... Petitioner
Vs.
1. The State of Tamilnadu
Rep. By its Inspector of Police,
Kamuthi Police Station,
Ramanathapuram District.
Crime No.45 of 2019.
2. Ramesh Kumar ... Respondents
PRAYER: Criminal Original Petition filed under Section 528 of
BNSS/Section 482 of Cr.P.C praying to call for the records in STC.No.2735 of
2022 on the file of the learned Judicial Magistrate No.I, Ramanathapuram and
quash the same as it has no prima facie case against the petitioner.
For Petitioner : Mr.Ananth C.Rajesh
For R1 : Mr.K.M.D.Muhilan
Government Advocate (Crl. Side)
ORDER
This Criminal Original Petition has been filed to quash the proceedings Page 1 of 12 https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 01:37:49 pm ) Crl.O.P.No.21090 of 2024 in STC.No.2735 of 2022 on the file of the learned Judicial Magistrate No.I, Ramanathapuram.
2. On the complaint lodged by the second respondent, the first respondent registered a FIR in Crime No.45 of 2019 for the offences under Sections 143, 188 of IPC and Section 177 of Motor Vehicles Act, 1988 alleging that the petitioner along with 5 other persons, belongs to AMMK political party, owners of the vehicle, flag proceeded towards the Pasumpon Muthuramalinga Thevar memorial on 19.03.2019 at 2.50 on, without getting prior permission for the procession. On completion of investigation, the first respondent filed final report and the same has been taken cognizance by the trial Court in S.T.C.No.2735 of 2022 on the file of the learned Judicial Magistrate No.I, Ramanathapuram, for the offences punishable under Sections 143, 188 of IPC and Section 177 of Motor Vehicles Act, 1988. To quash the said proceedings, the present petition has been filed.
3. The learned counsel appearing for the petitioner submitted that the petitioner is an innocent person and he has been falsely implicated in this case. He further submitted that the petitioner is the local leader of DMK and Page 2 of 12 https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 01:37:49 pm ) Crl.O.P.No.21090 of 2024 was in the position of Chairman of the Kadayanallur Municipality. For his personal use, he purchased a Toyota Innova Car bearing Registration No.TN 76 AC 0003 on 08.04.2015 and the same was registered on the same day. The vehicle was involved in a major accident. He sold the car to one Vasuki in the month of April 2018 and the name change in the registration certificate was effected on 04.05.2018. The petitioner is not the owner of the vehicle. The said Vasuki is the functionary of AMMK Party, participated in the above procession on 19.03.2019 and hence the case was originally registered against the owners of the respective vehicles through their registration numbers. The petitioner is not at all the owner of the vehicle as on 04.05.2018. Therefore, he sought for quashing the proceeding.
4. Per contra, the learned Government Advocate (Crl.Side) submitted that the petitioner along with 5 others owners of the vehicle with the AMMK political party flag proceeded towards the Pasumpon Muthuramalinga Thevar memorial on 19.03.2019 without getting prior permission and there are specific allegations as against the petitioner. He further submitted that the petitioner is not at all the owner of the vehicle and hence false case has been registered against him. Further, he would submit that Section 188 of IPC is a Page 3 of 12 https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 01:37:49 pm ) Crl.O.P.No.21090 of 2024 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. More over, the petitioner is an habitual offender by committing this kind of crimes. Therefore, he vehemently opposed the quash petition and prayed for dismissal of the same.
5. Heard the learned counsel for the petitioner and the learned Government Advocate (Crl.side) for the first respondent and perused the materials available on record.
6. On perusal of the charge, it is seen that the petitioner along with other accused persons, owners of the vehicle with the AMMK political party flag proceeded without getting prior permission and caused traffic. Therefore, the respondent police levelled the charges under Sections 143, 188 of I.P.C and Section 177 of Motor Vehicles Act, 1988 as against the petitioner and others. Except the official witnesses, no one has spoken about 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 Page 4 of 12 https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 01:37:49 pm ) Crl.O.P.No.21090 of 2024 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 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 188 of 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 :- Page 5 of 12
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 01:37:49 pm ) Crl.O.P.No.21090 of 2024 “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 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 petitioner 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 Page 6 of 12 https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 01:37:49 pm ) Crl.O.P.No.21090 of 2024 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 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 Page 7 of 12 https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 01:37:49 pm ) Crl.O.P.No.21090 of 2024 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.
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 Page 8 of 12 https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 01:37:49 pm ) Crl.O.P.No.21090 of 2024 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. It is also relevant to note the definition of Unlawful Assembly:
“According to Section 141 of the IPC, Unlawful Assembly means-
An assembly of five or more persons is designated an ”Unlawful assembly”, if the common object of the persons composing that assembly is -Page 9 of 12
https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 01:37:49 pm ) Crl.O.P.No.21090 of 2024 First - 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 Second - To resist the execution of any law, or of any legal process; or Third - To commit any mischief or criminal trespass, or other offence; or Fourth - 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 Fifth - 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.- Explanation – An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.”
10. Only when the assembly fit into any of the above circumstances, it could be construed as unlawful. In this case, the accused had neither shown any criminal force to commit any mischief, crime or offence nor by way of criminal force, tried to take possession of a tangible or intangible property or a Page 10 of 12 https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 01:37:49 pm ) Crl.O.P.No.21090 of 2024 corporeal or incorporeal right which is in possession and enjoyment of others.
11. In the case on hand, the First Information Report has been registered by the respondent police for the offences punishable under Sections 143, 188 & 177of Motor Vehicles Act, 1988. He is not a competent person to register FIR for the offences punishable 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. Further, the complaint does not even state as to how the protest was carried out by the petitioners and others is an unlawful protest and it does not satisfy the requirements of Section 143 and 188 of IPC. Therefore, the final report cannot be sustained and is liable to be quashed.
12. Accordingly, the FIR in Crime No.45 of 2019 on the file of the first respondent, is hereby quashed and this Criminal Original Petition stands allowed. Consequently, connected miscellaneous petitions are closed.
28.03.2025 Internet : Yes / No Index : Yes / No Speaking / Non Speaking order drl Page 11 of 12 https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 01:37:49 pm ) Crl.O.P.No.21090 of 2024 G.K.ILANTHIRAIYAN, J.
drl To
1. The Inspector of Police, Kamuthi Police Station, Ramanathapuram District.
2. The Public Prosecutor, High Court, Madras.
3.The Judicial Magistrate No.I, Ramanathapuram.
CRL OP(MD) NO.21090 of 2024 and Crl.M.P.(MD) Nos.13071 & 13072 of 2024 28.03.2025 Page 12 of 12 https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/06/2025 01:37:49 pm )