Asathullah v. State Rep By Its

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:21.09.2020

CORAM:

THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN CRL.O.P.No.13864 of 2020 and CRL.M.P.No.5323 of 2020 1.Asathullah (M/40) S/o.Abdullah Basha No.23, Iemam Nagar 3rd Street, Mottukollai, Ambur.

2.Kadhar Basha (M/35) S/o.Anwar, No.23, Anees Nagar, 1st Street, Pudhumanai, Ambur.

3.Mahaboob (M/36) S/o.Ismail No.37, Aysha Bi Nagar, 3rd Street, Ambur.

4.Riyaz Ahmed (M/34) S/o.Abdul Kayoom Maruthuvar, Ambur, Vellore.

5.Shakeel (M/34) S/o.Abdullah Basha No.35/12, 2nd Street, K.M.Nagar, Ambur, Vellore.

6.Imthias @ Safathullah (M/35) S/o.Abdul Rasheed No.110, 2nd Street, Ayisha Bi Nagar, K.M.Nagar, Ambur, Vellore.

7.Shadeeq Basha (M/43) S/o.Abdul Khader No.49/17/18, Mohammed Pura, 1st Street, Ambur.

8.Noor Basha S/o.Kasim No.22, K.M.Nagar, 5th Street, Ambur, Vellore.

9.Fayaz (M/32) S/o.Nisar Ahmed No.545, 2nd Floor TNHB, Ambur, Vellore.

10.Nafees (M/30) S/o.Siddeque Ahmed No.34/C, Chunnammbukarar Street, Ambur, Vellore.

...Petitioners/1 to 10 Accused

Vs.

1.State rep by its The Inspector of Police, Ambur Town Police Station, Vellore.

(Cr.No.90 of 2020) 2.Mrs.Privitha The Village Administrative Officer, Ambur, Tirupattur District.

...Respondents/Complainant

PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C, to call for the records relating to the case in Cr.No.90 of 2020 on the file of the 1st respondent herein and quash the same.

For Petitioners :

No Appearance For Respondents :

Mr.S.Karthikeyan Additional Public Prosecutor

O R D E R

This Criminal Original Petition has been filed to call for the records relating to the case in Cr.No.90 of 2020 on the file of the 1st respondent herein and quash the same. 2.It appears that the 1st respondent police initiated suo moto criminal prosecution against the petitioners alleging that

the petitioners were protested in the public road against the implementation of the Citizenship Amendment Act and further demanded the Central Government to withdraw the said Citizenship Amendment Act. On receipt of the above information, an FIR was registered in Crime No.90 of 2020 dated 14.02.2020 for the offences punishable under Sections 143, 341 and 188 of IPC by the 1st respondent and the same is pending for filing of charge sheet. The petitioners herein have not obtained the certified copy for the said FIR and filed a petition for Dispense with the production of the certified copy of the said FIR in the above Criminal Original Petition. Aggrieved by the initiation of criminal proceedings, the petitioners have come forward with the present petition seeking to quash the FIR in Crime No.90 of 2020.

3.

The learned counsel appearing for the petitioners submitted that the petitioners are social activist and have been raising voice for the public cause and public welfare, whenever injustice and inaction of the government machineries. The learned counsel submitted that the registration of FIR in Crime No.90 of 2020 by the 1st respondent police with intent to prohibit the fundamental right to freedom to assemble peaceably and without arms and same amounts to curtailing the dissent voices of the citizens is clearly in violation of the fundamental rights guaranteed under Article 14, 19(1)(a), 19(1) (b) and 21 the Constitution of India and also to the dictum laid down by the Hon'ble Supreme Court of India in Himatlal K.Shah v. Police Commissioner, Ahemdabad.

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. 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 written order from the authority. Further he submitted that the petitioners or any other members had never involved in any unlawful assembly and there is no evidence that the petitioners or others restrained anybody. However, the officials of the respondent police had beaten the petitioners and others. When there was lot of members involved in the protest, the respondent police had registered this case, under Sections 143, 341 and 188 of IPC as against the petitioners and others. Therefore, they sought for quashing the proceeding. 4.

Per contra, the learned Additional Public Prosecutor submitted that the petitioners along with others staged protest and there are specific allegations as against the petitioners to proceed with the trial. Further, he would 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(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 petitioners 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.Karthikeyan, learned Additional Public Prosecutor appearing for the respondents.

6.

On perusal of the charge, it is seen that the petitioners and others were protested in the public road against the implementation of the Citizenship Amendment Act and further demanded the Central Government to withdraw the said Citizenship Amendment Act. Therefore the 1st respondent police leveled the charges under Sections 143, 341 and 188 of IPC as against the petitioners and others. 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 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 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, 341 and 188 of IPC, registered by the 1st 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 Cougbi 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.

8.

The learned counsel for the petitioners 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 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 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 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 been registered by the 1st respondent police for the offences under Sections 143, 341 and 188 of IPC. He 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. Further, the complaint does not even state as to how the protest formed by the petitioners and others is an unlawful protest and does not satisfy the requirements of Section 143 of IPC. Therefore, the final report cannot be sustained and it is liable to be quashed.

10.

Accordingly, the proceedings in Cr.No.90 of 2020 on the file of the 1st respondent, is quashed and the Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar gbi

To 1.The Inspector of Police, Ambur Town Police Station, Vellore.

2.The Village Administrative Officer, Ambur, Tirupattur District.

3.The Public Prosecutor, High Court, Madras.

CRL.O.P.No.13864 of 2020 and CRL.M.P.No.5323 of 2020 RSV(CO) RN(03/11/2020)