Sekar Alias Mani v. The State Rep By Its, The Inspector Of Police,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 13.12.2024

CORAM

THE HON'BLE MR. JUSTICE SUNDER MOHAN Crl.O.P.No.31290 of 2024 and Crl.M.P.No.17808 of 2024 Sekar @ Mani ... Petitioner Vs.

1. The State represented by The Inspector of Police, Sozhatharam Police Station, Cuddalore.

2. Maria Joseph Arokiya Doss The Sub Inspector of Police, Sozhatharam Police Station, Cuddalore.

... Respondents PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C., to call for the records in F.I.R in Crime No.278 of 2017 on the file of the first respondent and quash the same.

For Petitioner : Mr.D.Padmanabhan For R1 : Mr.S.Sugendran Additional Public Prosecutor

O R D E R

This Criminal Original Petition has been filed to call for the records in F.I.R in Crime No.278 of 2017 on the file of the first respondent and quash the same.

2. Heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the first respondent Police and perused the materials available on record.

3. The allegation against the petitioner is that the petitioner had participated in the protest along with many others before the ration shop against the price rise and condemn the State and the Central Governments. Hence the F.I.R in Crime No. 278 of 2017 was registered as against the petitioner for the offence under sections 143 and 188 IPC.

4. Mr. D.Padmanabhan, the learned counsel for the petitioner, would submit that the respondent police have not conducted any investigation pursuant to the FIR and therefore, no final report has been

filed so far. The learned counsel further relied upon the Judgment of this Court in Jeevanandham and others vs. State reported in 2018 SCC OnLine Mad 13698 : (2018) 2 LW (Cri) 606 in support of his submission that the allegations would not constitute any of the offences alleged.

5. Mr. S. Sugendran, the learned Additional Public Prosecutor, appearing for the respondent police, on instructions, would submit that the respondent police have not conducted any investigation so far.

6. Admittedly, no investigation has been conducted for nearly seven years. Further the allegations in the FIR would not constitute any of the offences alleged. In order to prosecute an accused for an offence under Section 188 of the IPC, it is mandatory to follow the procedure prescribed under Section 195 of the Cr.P.C., and if the said procedure is not complied with, the prosecution cannot be maintained. This Court in Jeevanandham and others vs. State (cited supra) has held as follows:

''19. From the above judgments, it is clear that in order to prosecute an accused for an offence punishable under Section 188 of IPC, it is mandatory to follow the procedure prescribed under Section 195 of the Code, else, such action is rendered void ab initio. The object of the provision is to provide for a particular procedure, which gives authority only to the public servant. The legislative intent is to prevent an individual or a group of persons from facing criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill will, or frivolity of disposition and to save the time of Criminal Courts from being vexed by endless prosecution. Section 195 of Cr.P.C. is an expansion to the general rule contained under Section 190 of Cr.P.C, wherein, any person can set the law in motion by making a complaint.

''20. Therefore, it is very clear from the above judgments that there must be a complaint by a public servant, who is lawfully empowered, whose lawful order has not been complied with. The provisions of Section 195 of Cr.P.C. are mandatory and non-

compliance, with it, will make the entire process void ab initio, being without jurisdiction.''

7. As regards the offence under Section 143 of the IPC, this Court in the aforesaid Judgement held as follows: ''35...Therefore, a violation of the so-called promulgation under Section 30(2) of the Police Act will not by itself constitue an offence under Section 143 of the IPC. In this case, the assembly of persons were made to express dissatisfication of the governance and claiming for minimum rights that are guaranteed to an ordinary citizen. If such an assembly of persons are to be trifled by registereing an FIR under Section 143 of the IPC and filing a Final Report for the very same offence, no democratic dissent can ever be shown by the citizens and such prohibition will amount to violation of fundamental rights guaranteed under the Constitution.''

8. Therefore, this Court is of the view that the impugned FIR is

liable to be quashed as none of the offences alleged have been made out on the facts and hence quashed.

9. Accordingly, the Criminal Original Petition stands allowed. Consequently, connected miscellaneous petition is closed. 13.12.2024 mfa Index:Yes/No Speaking Order: Yes/No To

1. The Inspector of Police, Sozhatharam Police Station, Cuddalore.

2. The Public Prosecutor High Court, Chennai.

SUNDER MOHAN , J mfa Crl.O.P.No.31290 of 2024 and Crl.M.P.No.17808 of 2024 13.12.2024