P.Anbarasan, S/O.Palraj, South v. The Inspector Of Police
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.03.2019
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN Crl.O.P.No.18202 of 2014 and Crl.M.P.No.1 of 2014 1.P.Anbarasan 2.Kuily ... Petitioners Vs.
The Inspector of Police, Thiruthuraipoondi Police Station, Thiruthuraipoondi, Thiruvarur District.
(Crime No.176/2014) ... Respondent PRAYER:
Criminal Original Petition filed under Section 482 Cr.P.C. praying to call for the records of the respondent in connection with the impugned Charge sheet in STC No.909/2014 (in Crime No.176/2014) on the file of the Judicial Magistrate, Thiruthuraipoondi, and Quash the same.
For Petitioners: Mr.S.Sivakumar For Respondent : Mr.M.Mohamed Riyaz Additional Public Prosecutor
ORDER
This petition has been filed to call for the records of the respondent in connection with the impugned Charge sheet in STC No.909/2014 (in Crime No.176/2014) on the file of the Judicial Magistrate, Thiruthuraipoondi.
2.The case of the prosecution is that on 22.03.2014, after getting permission from the Assistant Election Officer, Thiruthuraipoondi Assembly Constituency the petitioners conducted campaign near new bus stand on 24.03.2014 around 5.00 p.m. and also performed meetings in the street corners. But the complaint has been given that the petitioners had conducted campaign in some other places other than the places they were allowed to do so and the same has been registered in Crime No.176 of 2014 on 27.03.2014 after three days for the offences under Sections 171(f) r/w 188(a) I.P.C.
3.The learned counsel appearing for the petitioners submitted that the petitioner only after getting permission from the Assistant Election Officer, Thiruthuraipoondi Assembly Constitutency they had involved in campaign. 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 one's view are 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. 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 petitioner or others restrained anybody. Therefore, he sought for quashing the proceeding. 4.Per contra, the learned Additional Public Prosecutor submitted that the petitioners without getting permission from the Assistant Election Officer, Thiruthuraipoondi had involved in campaign in the places other than the places they had been allowed to campaign through the loud speakers. 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. Therefore, he vehemently opposed the quash petition and prayed for dismissal of the same.
5.Heard Mr.S.Sivakumar, learned counsel for the petitioners and Mr.M.Mohamed Riyaz, learned Additional Public Prosecutor appearing for the respondent.
6.On perusal of the charge, it is seen that the petitioners had conducted campaign in some other places, other than the places they were allowed to campaign without getting prior permission from the concerned authority. Therefore the respondent police levelled the charges under Sections 171(f) r/w 188(a) I.P.C. as 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, 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.
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 respondent police for the offences under Sections 171(f) r/w 188(a) I.P.C. and the same has been taken cognizance in STC.No.909 of 2014 on the file of the learned Judicial Magistrate, Thiruthuraipoondi. As such, the the proceedings in STC.No.909 of 2014 is liable to be quashed.
10.Accordingly, the proceedings in STC.No.909 of 2014 on the file of the learned Judicial Magistrate, Thiruthuraipoondi is quashed and the Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(AD IV) //True Copy// Sub Assistant Registrar pds/lok To
1. The Inspector of Police, Thiruthuraipoondi Police Station, Thiruthuraipoondi, Thiruvarur District.
2. The Judicial Magistrate, Thiruthuraipoondi
3. The Public Prosecutor, High Court of Madras.
+1cc to Mr.S.Sivakumar, Advocate, S.R.No.22141 Crl.O.P.No.18202 of 2014 and Crl.M.P.No.1 of 2014 VSNII(CO) CS/15/05/2019