Yacoob v. State Rep.By Its

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 13.09.2022

CORAM

THE HONOURABLE Ms. JUSTICE R.N.MANJULA Crl.O.P No.6437 of 2021 and Crl.M.P No.4266 of 2021 Yacoob ... Petitioner Vs.

1.The Inspector of Police Tambaram Police Station Chengalpattu District.

2.Saravanan ... Respondents PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C. praying to call for the records relating to Crime No.1092 of 2020 on the file of the 1st respondent and quash the petitioner's portion in respect of the same.

For Petitioners : Mr.G.Mohamed Aseef For Respondents : Mr.A.Damodaran for R1 Additional Public Prosecutor 1/12

O R D E R

This Criminal Original Petition has been filed seeking to call for the records relating to the case in Cr.No.1092 of 2020 on the file of the first respondent herein and to quash the same as illegal.

2. The petitioner is an accused in the case in Crime No.1092 of 2020. The case has been registered by the respondent against the petitioner on the allegation that this petitioner and 29 persons were illegally assembled and demonstrated a protest alleging that the quarantine centre in VIT College, Vandalur was not properly maintained and basic facilities was also not provided. Subsequently, FIR has been registered in Crime No.1092 of 2020 on 17.06.2020 for the offences under Sections 143, 283, 269, 353, 188 of IPC.

3. The learned counsel for the petitioner submitted that the respondent has filed multiple FIR's for one offence in the course of same transaction, on the same set of facts; the role of the petitioner was not mentioned in the FIR and there is no ingredients to show that the petitioner has committed the offences under Sections 143, 283, 269, 353 and 188 of IPC; the registration of the FIR is in violation of Section 195(1)(a)(i) of 2/12

Cr.P.C.; the allegations made in the FIR does not disclose any cognizable offence; the right of the petitioner and other persons to assemble peacefully without any arms in order to show dissenting voices cannot be construed as a criminal offence; hence, this Court has to invoke its provisional power and quash the proceedings.

4. The learned Additional Public Prosecutor submitted that on 17.06.2020 at 5.00 p.m, the police got an information that the accused were assembled together illegally; despite the prohibitory order under Section 144 IPC was in force, they were obstructing the vehicles coming on that way; though they were warned by the police, they did not disperse and continued to cause obstruction to the traffic and disturbed the general public.

5. The petitioner and other persons were said to have assembled and demonstrated a protest alleging that the quarantine centre in VIT College, Vandalur was not properly maintained and basic facilities was also not provided. No specific overtact is seen on the part of the petitioner that the petitioner and other persons were preventing the police while discharging their duties by using criminal force or assault and there is no ground to 3/12

attract the offence under Section 353 IPC also. The unlawful assembly is defined under Section 141 IPC as under:

An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is- (i) 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 (ii) to resist the execution of any law, or of any legal process; or (iii) to commit any mischief or criminal trespass, or other offence; or (iv) 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 (v) 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".

6. A reading of the FIR does not disclose that the petitioner and other 4/12

persons had assembled with any common object of committing the acts enunciated under Section 141 IPC. Without any ground materials to show that the petitioner had assembled in an unlawful manner, they cannot be punished for the offence under Section 143 of IPC. In fact, when the ground offence (i.e) unlawful assembly itself does not have any basic material, the rest of the offences will not stand. There is no allegation that the petitioner had ever committed any act of violence. Though the prohibitory order under Section 144 of IPC might be in force, there cannot be any reason to charge the petitioner under various charges for having been present somewhere without any unlawful object. Many FIRs have been registered for the alleged offences which are said to have occurred in the same transaction.

If several people other than the petitioner were present in the place of occurrence, it will not be easy to manage the crowd and the officer, who registered the FIR would have sought the help of the senior to seek more police force. There was no commotion in the crowd and they did not endanger the life of any persons or property. The entire materials produced before this Court are found to be insufficient to make out the various offences as stated above against the accused.

7. So far as Section 188 is concerned, the special procedure as 5/12

contemplated under Section 141 Cr.P.C ought to have been followed. No case can be registered under Section 188 of IPC without making any complaint to the Court in accordance with Section 195(1)(a)(i) of Cr.P.C . In the case of C.Muniappan and Others .Vs. State of Tamil Nadu reported in ( 2010) 9 SCC 567, the Hon'ble Supreme Court has held as follows:

Charges under Section 188 IPC :

27. Section 195 Cr.PC reads as under :

"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 Court 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 ........

except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"

28. Section 195(a)(i) Cr.PC bars the court from taking cognizance of any offence punishable under Section 188 IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. The object of 6/12

this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant. The court lacks competence to take cognizance in certain types of offences enumerated therein. The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill-will or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions. This provision has been carved out as an exception to the general rule contained under Section 190 Cr.PC that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person.

Other provisions in the Cr.PC like sections 196 and 198 do not lay down any rule of procedure, rather, they only create a bar that unless some requirements are complied with, the court shall not take cognizance of an offence described in those Sections. (vide Govind Mehta v. The State of Bihar, AIR 1971 SC 1708; Patel Laljibhai Somabhai v. The State of Gujarat, AIR 1971 SC 1935; Surjit Singh & Ors. v. Balbir Singh, (1996) 3 SCC 533; State of Punjab v. Raj Singh & Anr., (1998) 2 SCC 391; K. Vengadachalam v. K.C. Palanisamy & Ors.

Marwah & Anr. v. Meenakshi Marwah & Anr., AIR 2005 SC 2119).

29. The test of whether there is evasion or noncompliance of Section 195 Cr.PC or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of a public servant is required. In Basir-ulHaq & Ors. v. The State of West Bengal, AIR 1953 SC 293; andDurgacharan Naik & Ors v. State of Orissa, AIR 1966 SC 1775, this Court held that the provisions of this Section cannot be evaded by describing the offence as one being punishable under some other sections of IPC, though in truth and substance, the offence falls in a category mentioned in Section 195Cr.PC. Thus, cognizance of such an offence cannot be taken by mis-describing it or by putting a wrong label on it.

30. In M.S. Ahlawat v. State of Haryana & Anr., AIR 2000 SC 168, this Court considered the matter at length and held as under :

"....Provisions of Section 195 CrPC are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section." (Emphasis added) 8/12

31. In Sachida Nand Singh & Anr. v. State of Bihar & Anr., (1998) 2 SCC 493, this Court while dealing with this issue observed as under :

"7. ..Section 190 of the Code empowers "any magistrate of the first class" to take cognizance of "any offence" upon receiving a complaint, or police report or information or upon his own knowledge.

Section 195 restricts such general powers of the magistrate, and the general right of a person to move the court with a complaint to that extent curtailed. It is a wellrecognised canon of interpretation that provision curbing the general jurisdiction of the court must normally receive strict interpretation unless the statute or the context requires otherwise." (Emphasis supplied)

32. In Daulat Ram v. State of Punjab, AIR 1962 SC 1206, this Court considered the nature of the provisions of Section 195 Cr.PC. In the said case, cognizance had been taken on the police report by the Magistrate and the appellant therein had been tried and convicted, though the concerned public servant, the Tahsildar had not filed any complaint. This Court held as under :

"4...The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant, namely, the Tahsildar in this case. The 9/12

trial was thus without jurisdiction ab initio and the conviction cannot be maintained.

5.The appeal is, therefore, allowed and the conviction of the appellant and the sentence passed on him are set aside." (Emphasis added)

33. Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the pubic servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195Cr.PC are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction".

8. It is reliably learnt that the Government has taken proactive steps to drop similar such cases registered during the pandemic in the public interest. In such circumstances, I feel that no fruitful purpose will be served in allowing the investigation to be done in a case which is bald and contains trivial allegation. Hence, I feel it is appropriate to quash the proceedings by invoking the powers of this Court under Section 482 of Cr.P.C 10/12

9. Accordingly, this Criminal Original Petition stands allowed and the FIR in Crime No.1092 of 2020 on the file of the 1st respondent is hereby quashed. Consequently, connected Miscellaneous Petition is closed. 13.09.2022 Index : Yes/No Speaking Order : Yes / No uma To

1. The Inspector of Police Tambaram Police Station Chengalpattu District.

2.The Public Prosecutor High Court of Madras.

R.N.MANJULA, J., uma 11/12

Crl.O.P No.6437 of and Crl.M.P No.4266 of 13.09.2022 12/12